By Marianne Tancor, J.D.
In their fourth Out Front Ideas COVID-19 briefing, workers’ compensation specialists Kimberly George and Mark Walls discuss with a panel of experts the challenges faced by employers as COVID-19 restrictions are gradually lifted and workers around the country return to work. Topics include new leave of absence laws and safety concerns employers must consider in developing return-to-work strategies. George and Walls also address issues surrounding the current and future impact of COVID-19 on access to medical care and emphasize the importance of communication with injured workers during this period of crisis. Interested readers can listen to the full webinar here: https://goto.webcasts.com/viewer/event.jsp?ei=1298651&tp_key=9c024059f1
New Leave of Absence Laws
Panelist Bryon Bass, a disability and leave specialist at Sedgwick, describes new legislation designed to aid employees who are out of work for COVID-related reasons. At the federal level, Bass identifies the Families First Coronavirus Response Act (FFCRA), applicable to employers with 500 or fewer employees. This bill provides emergency paid sick leave of up to 80 hours for employees on leave because (1) they are experiencing Covid-19 symptoms for which they are seeking medical treatment, (2) they or someone under their care is required by government order or by a healthcare professional to self-quarantine, or (3) they have childcare responsibilities due to a COVID-19 school or daycare closure. The provisions also allow for an additional 10 weeks of paid expanded family and medical leave at two-thirds of an employee’s regular pay when the employee is unable to work because of COVID-19 childcare responsibilities, and include other subsidies for employees who were furloughed or laid off.
Bass notes that many states, including California, Hawaii, New Jersey, New York, Puerto Rico, Rhode Island, and Washington, have introduced legislation similar to FFCRA that extends disability and paid leave rights to employees based on COVID-19. In addition, most large employers have instituted some form of pandemic-related emergency paid sick leave employees can utilize. Bass say that while many employees have not yet used any leave of absence benefits because they are working remotely, he expects to see an increase in requests for these benefits as businesses reopen.
According to Bass, there are several factors that dictate how the new leave legislation will interact with employer benefit plans and workers’ compensation benefits. Bass explains that if an employee is absent for COVID-related reasons, he or she may be entitled to benefits under an employer short-term disability plan in addition to some of the new state or federal leave of absence benefits. As an example, Bass points to New York, where employer benefits are provided on top of any state or federal benefits, although the federal benefits may be offset by those provided under a state program. Bass points out, however, that the majority of federal, state and employer disability programs include workers’ compensation exclusions, making workers’ compensation the primary benefit and the other benefits supplementary.
Return to Work Safety Strategies
Bass breaks down the components of a safe return-to-work strategy into three parts: (1) initial preparation to reopen the workplace, (2) safety protocols when the workers return, and (3) sustainability of a safe work environment over time. Within all of these categories, employers must be mindful of the safety of their employees as well as that of the general public. Bass reminds employers that they must also ensure that they comply with any standards released by government agencies and local public health organizations.
According to Bass, if an employer’s business operates in multiple locations the employer must do a community readiness assessment in each of the locations prior to reopening. Then, says Bass, the employer needs to assess the preparedness of its own facility infrastructure to account for social distancing requirements. Bass notes other considerations as well, such whether employees will be required to wear masks and who will incur the expense of the masks. Right now, approximately 19 states have mandatory mask requirements for employees.
Finally, Bass indicates that in deciding when and how to reopen, employers should be cognizant of employee concerns about re-entering the workplace. In this respect, Bass emphasizes the importance of allowing flexible work arrangements that account for these concerns, which may hinder the ability to return to a conventional work setting. Bass believes that the COVID-19 crisis has changed the way businesses need to operate, and that flexibility and agility to adapt to changing circumstances will be critical as employers reopen.
For COVID-19 updates and guidance regarding safe return-to-work practices, Bass directs employers and workers’ compensation professionals to websites for the Department of Labor (https://www.dol.gov/) and the CDC (https://www.cdc.gov/), in addition to the coronavirus pages set up by Sedgwick (https://www.sedgwick.com/coronavirus) and by the Littler law firm (https://www.littler.com/coronavirus).
Access to Medical Care
Regulatory compliance and risk management specialist Michele Hibbert-Iacobacci notes that, from a regulatory perspective, access to non-emergency medical care has been severely limited by the COVID-19 crisis. Although there has been a substantial increase in the use of telemedicine and virtual healthcare since the onset of the pandemic, Hibbert-Iacobacci says the increase in virtual services only partially offsets the significant decrease in face-to-face visits. Hibbert-Iacobacci notes that Harvard reported a 60 percent drop in patients receiving clinic-based treatment, while the community is seeing a 10% to 12% jump in telehealth appointments.
Hibbert-Iacobacci worries that many states have acted too quickly to implement telehealth during the pandemic, knowing they lack the regulatory oversight and knowledge to address various impediments patients and providers may encounter along the way. While the immediate and unplanned need for telehealth has encouraged leniency in regulation of these services, Hibbert-Iacobacci believes regulatory issues should be revisited when the COVID-19 crisis subsides.
Particularly relevant in workers’ compensation arena is the potential gap in medical care for injured employees who have conditions that generally heal with time, such as soft tissue injuries. Hibbert-Iacobacci says it is unclear right now whether this gap in medical care will ultimately extend the need for care by these employees, delay the return-to-work process and/or increase the expense of certain workers’ compensation claims.
Another significant issue at play in the workers’ compensation ambit is the prioritization of medical care for injured employees once non-COVID medical treatment is permitted.
George firmly believes that more extensive communication with injured workers is key to understanding the physical and emotional impact of COVID-19 on functionality and vital to prioritizing medical care for open claims. Additionally, George maintains that payors should help claims teams prioritize workers’ needs so employees can receive the necessary care when medical practices re-open for elective treatment, without overwhelming the healthcare system.
George encourages claims teams to rely on a data-driven approach to stratify patient populations across injured workers and assess the data collected and disability guidelines conjointly to better prioritize medical treatment needs. According to George, advanced data analytics can be an invaluable tool in claims handling, especially if everyone on the claims team, including healthcare networks, claims administrators, case managers, providers, and attorneys, is engaged in the process.
Jennifer Ryon, the chief revenue officer for workers’ compensation healthcare network Prime Health Services, indicates that the ability to ramp up access to and prioritization of medical treatment in the clinical setting varies significantly by geographic area. She notes that in some areas, medical practices and healthcare systems are already triaging patients for non-emergency appointments based on pain levels and nature of their medical condition.
Ryon believes that it is more important now than ever, as workers are returning to work, for healthcare networks such as Prime Health to partner with employers, claims administrators and insurance carriers to identify providers and physician panels in certain geographical locations that are willing and able to schedule appointments for workers’ compensation claimants. She emphasizes that healthcare networks are available to help workers’ compensation professionals gain access to providers that may previously have been outside the scope of their workflow.
© Copyright 2020 LexisNexis. All rights reserved. Excerpted from Workers’ Compensation Emerging Issues Analysis, 2020 Edition, now on sale at the LexisNexis Store, www.lexisnexis.com/store. This article is reprinted with permission.