Liability Threat Could Prompt Self-Insured To OK COVID-19 Comp Claims

Self-insured employers facing the threat of COVID-19 workplace safety litigation could opt to accept infection workers compensation claims, as exclusive remedy clauses could provide better protection from expensive lawsuits later on, according to legal experts.

“Liability is scary because there are no caps,” said Mike Fish, Birmingham, Alabama-based founding member of the comp defense firm Fish Nelson & Holden LLC and past president of the National Workers Compensation Defense Network, an alliance of comp defense attorneys that monitor legislation.

“Employers weighing the risk may choose to have the exclusivity doctrine,” he said. “Liability lawsuits are getting filed everywhere.”

Generally, infectious diseases are not considered compensable in most states, although some accept such claims if there’s a clear connection between work and a virus — such as the risks posed to health care workers.

And states are seeing an uptick in COVID-19 compensability due to executive orders or new laws clearing the red tape for certain workers. Many of the new laws are “rebuttable,” meaning an employer can challenge whether an employee contracted a virus through work.