COVID-19 and Employer Manufactured Outrage Over the Use of Presumptions to Cover First Responders Under Workers' Compensation

As we noted in our previous blog, What Florida First Responders Must Know About COVID-19 and Workers' Compensation, the COVID-19 pandemic has created additional challenges for Florida’s first responders. Rather than prioritizing police officers, firefighters, health workers, correctional officers, paramedics, and emergency medical technicians, employers continue to downplay the required safety precautions – mainly due to the costs associated with these precautions. Worse, many employers refuse to take responsibility for employees who contract COVID-19 while working in jobs essential to a functioning economy and society.

Inadequacies of Workers’ Compensation Exposed in the Era of COVID-19

A recent Sedgwick report on American workers’ compensation expressed concern that overuse of the “presumptions” could undermine the “grand bargain,” which is foundational to the system. The “grand bargain” is, of course, a largely mythical notion given current statutory limits and restrictions, but anticipates that employees give up their rights to a jury trial to collect damages for workplace injury in exchange for the fast and efficient delivery of a more limited set of benefits. According to the study[GB1] :

“COVID-19 has presented American workers and employers with a variety of impacts. From its roots as an injury compensation system, American workers’ compensation has evolved on a state-by-state basis. Despite some outliers, disease has not been compensable in these systems absent specific evidentiary demonstrations or legislative definitions. The nature of COVID-19 and its challenges have led various states to react legislatively or regulatorily to amend the social contract that is workers’ compensation and to shift virus costs to employers and insurance carriers retroactively. There remains a specific COVID-19 focus in much of that, but a suggestion of potential generalized expansion of workers’ compensation in the long term.”

We could not disagree more. Far from undermining the grand bargain, presumptions remain the only recourse for first responders to obtain the necessary medical care and compensation for lost wages related to COVID-19, due to the failure of existing law to address the societal problem. In the most compelling way, the COVID-19 pandemic has ripped the Band-Aid off and exposed the severe limitations and deficiencies of the workers’ compensation system. Florida first responders face procedural hurdles, onerous evidentiary requirements, and impossible burdens of proof in COVID-19 cases – a glaring warning that workers’ comp, in its current condition, fails to protect the very workers a functioning, civil society needs. Simultaneously, it immunizes employers from liability for the most egregious failures to protect their employees from harm. If you are a Florida first responder – whether a firefighter, law enforcement officer, correctional officer, health worker, paramedic, or emergency medical technician, it is imperative to know what workers’ comp covers with respect to COVID-19. We invite you to contact us to schedule a free evaluation of your case.

Geoff Bichler Responds to Marion County Sheriff Billy Woods Forbidding His Employees to Wear Masks

Beyond simply providing additional safety precautions, some employers like the Marion County Sheriff’s Office, have prohibited employees from wearing masks to protect themselves and others. On August 12, ClickOrlando.com reported Marion County Sheriff Billy Woods’s shocking announcement that his deputies would not be permitted to wear masks (except under some conditions). Neither would visitors to the sheriff’s office. Woods claimed in an email to his staff that he arrived at his decision after careful consideration as Florida deals with the ongoing COVID-19 pandemic.

The Sheriff even declared that members of the public who enter the office wearing masks would be asked to take them off or leave the premises, though his ruling included exceptions for deputies who work in the jail, schools, hospitals, or the courthouse. Sheriff Woods claimed he issued the rule to facilitate oral and visual communication during a time of peril for law enforcement throughout the United States. With distrust and/or hatred of police officers and law enforcement at an all-time high, Woods noted that his intention was to ensure clarity of communication and identification of individuals walking into the lobby. He also claimed there is a disparity among the reports coming from health officials and epidemiologists, with some noting that masks reduce the spread of COVID-19 significantly and others suggesting there is no evidence that masks impede the transmission of the virus. In their August 18 follow-up to the story, ClickOrlando.com noted that Woods’ order had been amended to permit visitors to the sheriff’s office to wear masks, though deputies were still banned from doing so. Two days after Woods’ original announcement, Geoff Bichler, Founding Member and Managing Partner of Bichler & Longo, PLLC, expressed his outrage at the measure in WorkCompCentral.com, calling it “literally unfathomable.” An outspoken advocate for first responders, Bichler described Sheriff Woods’ mask order “shocking and nothing less than a dereliction of duty,” emphasizing that such actions underscore the need for presumptive legislation designed to facilitate a smoother process for frontline workers infected with COVID-19 to qualify for compensation benefits and paid time off. Some Florida first responders have reported that their claims were denied, leaving them no choice but to use personal vacation time or miss paid workdays to quarantine and recover.

The WorkCompCentral.com article also notes that 14 states around the country have adopted some degree of presumption for essential workers during the pandemic and that Florida regulators have directed a state agency to consider claims brought by state-employed frontline workers favorably. As we revealed in What Florida First Responders Need to Know About COVID-19 and Workers’ Compensation, Florida CEO Jimmy Patronis ordered the state’s Division of Risk Management – which administers compensation insurance for state workers – to relax its restrictions and review and process claims from first responders who tested positive for COVID-19. This directive includes the presumption that patients who filed the claim contracted COVID-19 on the job.

Law Enforcement Agencies and Insurance Trusts Resistant to Presumption in COVID-10 Workers’ Compensation Cases

When it comes to honoring the presumption in COVID-19 claims filed by its first responders, Bichler notes in WorkCompCentral.com that there is often “a circle the wagons mentality” between the law enforcement agency and its insurance trust. Based on other public safety agencies’ actions, he expects the sheriff’s department to fight most of these claims. In Marion County, the Florida Office of Judges of Compensation Claims reports that only three claims have been filed against the Marion County sheriff this year, two of which were not related to the COVID-19 virus. However, the details of the third claim were not clear from online records. According to Bichler, “That could suggest that some deputies are reluctant to file reports of injury for fear of reprisal.”

At the time of Sheriff Woods order, Florida had a surge in new COVID-19 infections, setting a new record for deaths at 276, with new cases climbing to almost 8,000 – which was a reduction from the state’s mid-July peak at 15,300 but 10 times the daily numbers in April and May, according to news and health department reports.

Protective Service Workers – Including Police Officers and Other First Responders – Account for the Largest Share of COVID-19 Claims in Florida

As reported by the Florida Division of Workers’ Compensation, there was a significant increase in the number of COVID-19-related claims in June, when infections spread rapidly throughout the state. The most significant share of these claims was filed by Florida’s protective service workers, including law enforcement officers, firefighters, and other first responders. Through the end of July, protective service workers filed 4,345 claims, which accounts for about 37% of all claims related to COVID-19. Unfortunately, about 34% of those claims have been denied, a somewhat lower rate than claims filed by healthcare workers.

In Marion County, located in the central part of Florida, close to Orlando, with a population of 366,000, about 200 inmates and 36 employees at the county jail recently tested positive, in addition to several patrol officers and a nurse. Overall, 50 workers in the county have filed workers’ compensation claims related to COVID-19, but it is not clear from the report how many of them were from first responders

Around the state, COVID-19 has affected law enforcement agencies to varying degrees, with some hit harder than others. In July, the Miami Police Department reported the quarantining of 151 employees, while a few miles north in Broward County, more than 280 sheriff's workers tested positive, according to reports.

Are You a Florida First Responder Who Has Been Exposed to COVID-19 On the Job? Bichler & Longo Can Help

If you are a police officer, firefighter, correctional officer, health worker, paramedic, or emergency medical technician who has been infected with COVID-19 on the job, it can be devastating to have your claim denied. You work hard to keep your communities safe – an effort that demands courage, commitment, sacrifice, and a willingness to accept risks in the best of times. Now with the COVID-19 pandemic contributing an entirely new and dangerous threat to your health and wellbeing, it is vital to know and understand your rights under Florida law.

Our experienced workers’ compensation attorneys at Bichler & Longo can help. Contact us today for a free evaluation of your case.

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