By Sean Riordan, Esq.
I have received several phone calls over the past few days regarding the coronavirus (COVID-19) and what to do if a uniformed officer is, or is possibly, exposed to the coronavirus while working. The answer to this question is quite simple, and somewhat basic:
Fill out and File an Exposure Form.
That said, while that statement is the brass tacks answer, it is a bit of an over-simplification of the complex issue presented by the coronavirus. As is often the case with work-related exposure cases, whether an individual is successful in establishing that their illness is related to their work will come down the specific information that an officer provides regarding the exposure. As a result, officers should follow these instructions when filling out the exposure form:
- Be as specific as possible about where and from whom you became exposed;
- Give as much detail as possible (without naming) regarding why you believe that the person to whom you were exposed actually had the coronavirus;
- Provide as much detail as possible regarding the nature of your contact with the individual you believe caused your exposure.
At this relatively early stage of the spread of the virus, where a small percentage of the population has contracted the virus, identification of the person from whom you received the exposure can be relatively straightforward. Identifying the particulars of the exposure will allow us to affirmatively argue that you were exposed in the course of your duties. However, as the virus continues to spread and larger percentages of the population have the virus, establishing that an officer contracted the virus specifically at work will become more and more difficult. As time goes on employers and their insurance carriers are more likely to deny coronavirus claims with the argument that an individual officer is unable to meet their legal burden-of-proof; a burden which requires an officer to establish that they contracted the virus while working (as opposed to while they were at home or otherwise on their own personal time). So, by following Rule 1 above when filling out the exposure form we are better able to meet this burden.
Rule 2 is more tricky in practice, but just as important as Rule 1. The difficulty arises from an officer’s often sheer lack of knowledge regarding whether an individual with whom they have come into contact actually had the coronavirus. Due to HIPPA laws officers are often specifically barred from asking an individual for their protected health information and the individual is under no legal obligation to voluntarily reveal such information. This leaves officers in a position of speculating whether they were actually exposed to the coronavirus. It also creates a legal issue regarding that same burden-of-proof discussed above. Obviously, where an individual self-identifies as suffering from the coronavirus, provide such information on the exposure form. However, where specific knowledge of the exact exposure is lacking we must use circumstantial evidence to help us reach our legal mandate. On the exposure form, identify the circumstances that led you to believe that the individual you came into contact with had the virus. For example, if the person was complaining of fever/chills, difficulty breathing, coughing, etc., put this information down on your exposure form.
Lastly, providing detail about your level of contact with the individual you believe caused your exposure will also aide us in establishing that you contracted the coronavirus while working. If you touch the individual, the individual coughed/sneezed or otherwise breathed on you during your interaction, place such information on the exposure form as well. Transmissibility of the virus clearly depends on the level of contact an individual has with a coronavirus patient. Providing detail as to the level of contact you had with a potential coronavirus patient will equally aide is establishing your work-related illness.
The exposure form will fulfill your obligation of notifying your employer of your potential illness; it does not actually start a New York State Workers’ Compensation claim, however. That is, an exposure is simply that, an exposure. In order to file for worker benefits, you must have an illness (or injury) and identify such injury or illness on your original filing document (C3 Report). Therefore, unless you are actually diagnosed with coronavirus you do not need to file a Workers’ Compensation claim immediately. Instead, following an exposure follow your doctor’s advice regarding testing and treatment. If tests indicate that you have indeed contracted the virus, we should immediately file a claim for Workers’ Compensation.
As always, if you have any questions or concerns please do not hesitate to contact me directly at (646) 831-6229 or (212) 612-3198.
Be well and be safe.