Workers With COVID Sue Employers’ Insurance, Sparking Liability Debate

December 2, 2020 Updated: December 7, 2020

Dozens of residents in Orange County, California, are suing their employers’ insurance carriers after allegedly contracting COVID-19 on the job and suffering long-term disabilities as a result.

“A lot of them have lung damage; that seems to be the No. 1 issue long-term,” Marcelo Dieguez, a partner at Diefer Law Group, told The Epoch Times. His firm is representing some of these employees.

“Some of them are having issues months and months afterward, not being able to taste or smell things. And then some 25-year-old males appear not to have any damage, but get a scan of their lungs and are finding they have the lungs of 65- or 70-year-old males. We don’t know what the long-term impact of all this really will be.”

Many of the clients retained by Diefer worked in the restaurant or manufacturing industries, or are office employees who worked together with colleagues in close quarters.

“It’s a huge financial burden on them, because a lot of them are usually low-wage workers or low-wage earners,” Dieguez said. “And they either don’t know the rights or … they just don’t have the financial backing to actually be able to survive. It’s a tremendous financial hit, especially for low-wage earners.”

‘Horrible Burden’

Under an executive order signed by Gov. Gavin Newsom in May, essential workers are entitled to compensation benefits if they can confirm they contracted the virus within 14 days of being at work. The order expired in July, but was expanded in September with the passage of Senate Bill 1159 (SB1159).

The expanded order came with a new stipulation: a workplace must have had an outbreak of COVID-19 for the employee’s illness to be presumed as originating there. Prior to July 6, the outbreak component was not necessary in order to qualify for workers’ compensation insurance.

The legislation views an employee’s COVID-related illness as an occupational injury; it is assumed true until proven otherwise that a person contracted the disease at work, and the business owners’ insurance is responsible for it. The bill is effective through 2022.

The legislation’s disputable presumption—meaning a business must prove its sick employee didn’t contract the virus at work—doesn’t sit well with everyone.

John Kabateck, state director of the National Federation of Independent Business, told The Epoch Times the law places an unfair onus of responsibility on small businesses. The more claims a business’s insurance carrier pays out, the higher the premiums become, he said.

“My point is, it’s an incredibly unreasonable, if not impossible, expectation for small employers to prove that the [COVID-19-related illness] of their employee did not happen within their workplace,” Kabateck said. “And that’s a horrible burden to place on already fragile and uncertain job creators in our state.”

Unpaid Bills

Although the workers’ compensation carriers are required to pay out COVID-19 claims that fall under SB1159, Dieguez said not everyone is paying up. They’re refusing to cover medical expenses and disability payments, he said.

Some employers aren’t reporting COVID-19-related illnesses to their workers’ compensation insurance carriers, he added.

“They don’t want to pay it. They’ll fight it tooth and nail,” Dieguez said of the insurers. “And at some point, the insurance companies may lobby the state or federal government to take the brunt of this, depending on the extent of it once the pandemic is over. We still don’t know how deep the hole will be.”

Footing the Bill

Dieguez said the responsibility of who should cover COVID-related medical expenses could shift once the dust settles.

“Long term, I think there’s going to be a lot of public policy questions regarding who should ultimately be responsible,” he said.

“Should it be the employer? Should it be the state? Should it be the federal government? I’m sure there will be years and years of debates on public policy of who should bear the burden. Right now, it’s the insurance company—and that’s not to benefit the employer. It benefits the state, and the government, so [injured or disabled] people don’t go on Medicare or Medi-Cal.”

Kabateck is calling on state leaders to reevaluate the legislation in the New Year, to determine how California can better serve both small businesses and victims of the pandemic.

“This is a new rodeo for everybody. We’re all making our way through this process, which is all the more reason why it’s wrong to put the complete burden on small businesses,” he said. “Let’s come back in January [when] our legislature and leaders are to have a more in-depth discussion. And let’s figure out together whether that’s a combination of private, public, and [other sources of funding] that allows that to happen.”

Lawsuits Accumulating

Diefer Law Group—which specializes in workers’ compensation and employment law—is representing about 50 clients with lawsuits related to the COVID-19 pandemic, including one family whose relative died from the virus.

Death benefit claims are capped in California; the amount paid out is calculated on the number of surviving dependents. However, there is no limit to the amount survivors can seek in illness-related claims.

“They’re entitled to reasonable and necessary medical treatments, disability payments—which replaces their lost wages—and then the permanent-disability compensation at the end of the case,” Dieguez said, adding that there’s no magic number that equates to the amount a COVID-19 victim might be entitled to.

“It’s really hard to quantify,” he said. “In the law, you don’t get the emotional damage it’s going to cause you. What you get is [based on] how it is going to impair your ability to work in the future, and what’s the impairment that that’s going to leave upon you as far as needing medical treatment in the future? And that’s how you try to quantify that.”

Other COVID Concerns

The law firm receives about half a dozen calls per day on issues related to COVID-19. Some people are scared of contracting the virus and hesitant to return to work, while others aren’t being told about COVID-19 exposures at work. Some call to inquire about the legalities of enforcing mask-wearing on the job.

Companies are allowed to implement mask policies, although employees with health issues or disabilities could be exempt. Workers whose safety could be compromised by wearing a mask are also an exception to the rule.

Businesses can also require employees to report to work on-site, unless the workers are legally entitled to work from home due to medical issues or disabilities that fall under the Americans with Disabilities Act.

Follow Michelle on Twitter: @EpochMichelle