What Florida First Responders Must Know About COVID-19 and Workers' Compensation
The COVID-19 pandemic has presented additional challenges for first responders in the state of Florida. As we noted in a recent blog, Chapter 112 of the Florida Workers’ Compensation Act offers special statutory protection to first responders, including police officers, health workers, firefighters, correctional officers, paramedics, and emergency medical technicians. This chapter makes it easier for first responders to prove that diseases such as a COVID-19 infection are a work-related medical condition. In addition, Florida CFO, Jimmy Patronis, also recently ordered a state agency, the Division of Risk Management, to relax its restrictions and review and process claims from first responders who tested positive for COVID-19.
According to this directive, the Division of Risk Management, which handles compensation insurance for state workers, should presume that patients who filed the claims contracted COVID-19 on the job.
Understanding how important it is for Florida first responders to know what is covered by workers’ comp with respect to COVID-19, we’ve put together a list of FAQs to answer your questions and address your concerns. As always, if you’re a first responder in Florida, we invite you to contact us to schedule a free consultation to evaluate your case.
Most Frequently Asked Questions About COVID-19 and Workers’ Compensation
1. What does workers’ comp cover when I am exposed to COVID-19 while at work?
The answer to this question may be different depending on whether the first responder is diagnosed with COVID-19. A confirmed diagnosis of COVID-19 should trigger a Notice of Injury and claim that the condition is work-related. Exposure, without a confirmed diagnosis, is only problematic if the employer refuses to pay first responders who are forced to quarantine after being exposed. In these instances of quarantine without a diagnosis, Notice of Injury forms should be completed if your employer is forcing you, the first responder, to utilize bank time to get paid.
Workers’ compensation benefits for COVID-19 claims should include all required medical care, medication, and payment of lost wages. As a first responder, you may also be entitled to additional tax-free financial compensation due to the potential long-term impact of the disease.
2. Can Workers’ Compensation Be Denied Because The Time of My Exposure Is Unknown?
The short answer is yes. However, any denial of coverage should be disputed and litigated if necessary. As noted above, Florida CFO Jimmy Patronis issued a directive at the beginning of this pandemic that suggested COVID-19 cases should be presumed work-related for first responders. Still, the directive is not binding, which means each employing agency can deny individual claims based on any number of available defenses. From a public policy perspective, there is simply no basis to suggest that these cases should be denied but whenever that happens, Florida first responders should aggressively pursue relief to set the needed precedent and highlight the need for additional legislation to address the COVID-19 crisis.
3. What does the Federal family First Act cover?
The Families First Coronavirus Response Act (FFCRA), effective April 2 (and expiring December 31, 2020) generally requires employers with fewer than 500 employers to provide up to 12 weeks of paid leave to employees related to COVID-19. However, it is important to know that the FFCRA allows employers to exclude “emergency responders.” While the term "emergency responders" is not defined, it is generally assumed that this includes all first responders. Many agencies in Florida, notwithstanding the potential exclusion, have agreed to provide emergency paid sick leave under the act.
The sick leave provisions are probably the most relevant issue for Florida first responders because they provide for 80 hours of paid sick leave for an employee either diagnosed with COVID-19 or quarantined due to exposure. Employers may not require an employee to use other paid leave provided by the employer before using paid sick time under the Act.
4. Can I get both Workers’ Compensation and the Federal Act Coverage?
The short answer is yes: you can be covered by both workers’ compensation and federal legislation. The Families First Coronavirus Response Act provides supplementary protections to existing workers’ compensation law. As an example, an employer can provide full pay for the first 80 hours of lost time under FFCRA after which the employee would be entitled to lost wages under the Workers’ Compensation Act. Senate Bill 3607, Safeguarding America’s First Responders Act of 2020, amends the Public Safety Officers’ Benefits program to include COVID-19 related deaths and disabilities. PSOB benefits also overlap existing workers’ compensation law and provide substantial additional legal protections. It should be noted that the language in this bill provides that COVID-19 (or complications therefrom) suffered by a public safety officer shall be presumed to constitute a personal injury. This presumptive language could be beneficial in the workers’ compensation setting but the bill has not yet passed the House of Representatives. Since FFCRA does not provide for medical care, all medical care should be covered under the workers’ compensation act.
5. I was sent home by a supervisor. Is that enough to get the benefits of the Families First Coronavirus Response Act if I am negative, but exposed to someone who was positive?
The FFCRA does provide for full pay of up to 80 hours for employees forced to quarantine due to potential exposure to somebody who tested positive. Again, the law allows employers to exclude emergency responders but agencies should be pressed to pay first responders for lost time due to quarantine without the utilization of bank time. If the employer fails to provide the 80 hours of paid leave as required by FFCRA, we recommend that the issue be litigated.
6. How long do I have to send in my first notice of injury/illness?
Generally, Notices of Injury must be filed within 30 days of the occurrence of a work injury. In cases of occupational disease, the notice requirement is extended to 90 days. There are exceptions to these requirements but first responders who are either diagnosed or quarantined following exposure should file a Notice of Injury as soon as possible to protect legal entitlements. If you have delayed filing a Notice of Injury due to confusion, please call us at (407) 599-3777 for further guidance.
7. What do I do if they do not let me file a NOI/FROI? Or exposure report?
No employer can legally prohibit an employee from filing a Notice of Injury or exposure report. Any such prohibition might be a violation of F.S. Section 440.205 and other existing whistleblower protections.
8. Prior to April 1, I was placed under mandatory quarantine by my department. Whether I test negative or positive, am I covered under Workers’ Comp?
A positive test is certainly something that should be covered under Florida workers’ compensation. On the other hand, a forced quarantine, with negative test results is a bit trickier. However, under Florida law, exposure to a toxic substance can still be a work injury and may implicate legal protections.
9. After testing positive for COVID-19 after April 1, I was placed under mandatory quarantine by my department. They stated I needed two negative tests prior to being released to full duty after 14 days. However, when my tests came back positive, they denied my Workers’ Compensation coverage, claiming a lack of proof that I was exposed to COVID-19 at work; therefore, I must take my own sick time for more mandatory quarantine until I have two negative tests. Can they do that?
Legally, your employer can deny the claim and force you to pursue benefits through the existing administrative process. If you tested positive, your condition should be presumed work-related from a public policy perspective and we recommend that you fight the denial.
10. If I took an out-of-country vacation or a cruise and my department mandates me to be quarantined for 14 days upon my arrival home, is that covered under Workers’ Compensation?
Quarantine due to potential non-work-related exposure would not qualify for legal protections under the Workers’ Compensation Act but FFCRA could be argued.
11. After someone on my squad tested positive for COVID-19, I was quarantined. Since testing results are backed up, it has taken over 10 days to receive my negative results. Is that mandated time covered under Workers’ Comp?
If you are quarantined due to exposure on the job you should not be required to utilize bank time to receive your normal paycheck. The FFCRA and Workers’ Compensation Act are both potential sources of protection. In a case like this, it is appropriate to investigate.
12. What happens if I test negative but I am quarantined for more than 14 days?
From a policy perspective, you should be paid for up to 80 hours under the FFCRA, and workers’ comp should kick in to pay for anything not covered by the federal legislation.
13. Should I ever be made to use my own sick time if a supervisor mandates me to stay home sick?
If a first responder is required to quarantine, he or she should not have to utilize bank time to receive pay. Both the FFCRA and Workers’ Compensation provide potential mechanisms for payment of lost wages.
14. Can the department mandate that I get tested for the COVID-19 antibodies?
Currently, this is a complicated question without a clear answer, due to the numerous overlapping concerns and potential legal issues. Generally, antibody testing is reasonable although we do understand potential privacy concerns.
15. If someone in my family tests positive and the department mandates me to quarantine even though I have not tested positive, am I covered under Workers’ Compensation?
Situations in which quarantine is required, due to exposure off the job, will not be subject to workers’ comp protections. However, you may qualify for coverage of up to 80 hours paid leave under the FFCRA.
Contact the Law Firm of Bichler & Longo
Are you a police officer, firefighter, correctional officer, health worker, paramedic, or emergency medical technician dealing with a workers’ compensation issue due to COVID-19? Contact a workers’ compensation attorney at Bichler & Longo today for a free evaluation of your case.
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