The COVID-19 pandemic offers a unique challenge when it comes to workers’ compensation in Florida. With countless concerns and consequences from this virus, employers are scrambling to adjust to the ever-changing regulations and expectations, especially if an employee contracts the virus while on the job.

There is a national concern of what happens when an employee contracts COVID-19 and suspects it occurred at the workplace. Florida has two potential statutes that govern whether a virus would be considered a compensable workplace accident. They are commonly known as “Exposure”[1] cases and “Occupational Disease”[2] cases. The courts have yet to decide which arguments are going to be more persuasive in deciding if a COVID-19 case is more likely compensable under one statute or the other.

Either are more difficult standards to prove than the typical orthopedic injury. Not to mention the inherent problem of COVID-19 having a longer incubation period.[3] With a significant range of time between contraction and symptom appearance, an employee will automatically have an uphill battle proving the workplace caused the illness.

The State of Florida has had a number of governmental actions that impact how the courts will handle these cases. The first of these being the restriction on businesses from operating. Signed on April 1, 2020, the governor issued Executive Order 20-91.[4] The order restricted many businesses from operating completely, others to adjust their operation, and some needing to stay open as essential. The essential services list is quite long.[5] The list was increased eight days later.[6] This represents a massive number of employees still working during the pandemic.

Logically, if the shutting down of some businesses because of the COVID-19 pandemic is a method to reduce the rate of infection, then the businesses allowed or instructed to stay open are exposing their employees to a greater chance of infection. The next question comes to whether the State of Florida is offering guidance on how these employees will be treated if they contract the virus.

For most, the mild symptoms will require time off from work and very little cost to the employer and insurance carrier. However, if significant hospitalization or death occur, what is the risk to the employer?

The first notable piece of information provided to the public was on March 30, 2020. Florida Chief Financial Officer Jimmy Patronis issued a press release.[7] The press release directed the Division of Risk Management to presumptively provide workers’ compensation coverage to Frontline State Employees that test positive for COVID-19. This is significant in that it means once a qualifying employee tests positive, the coverage is automatically provided unless the insurance carrier can prove it was contracted outside of employment—a standard almost as difficult to prove as showing it was caused by employment.

This is also significant because it might reveal a huge disparity in who is covered and who is not. The Division of Risk Management is the insurance carrier for only State of Florida employees. “Frontline State Employee” are defined as:

• a.     First Responders, as defined in Section 112.1815, Florida Statutes, including: law enforcement officers, as defined in Section 943.10, Florida Statutes; firefighters, as defined in Section 633.102, Florida Statutes; and emergency medical technicians or paramedics.
• b.     Corrections Officers, as defined in Section 943.10, Florida Statutes, and other employees, whose official duties require physical presence in a state-operated detention facility.
• c.     State Employees working in the healthcare field, whose duties require contact with persons as they are being tested for COVID-19 or otherwise known to be infected with COVID-19.
• d.     Child Safety Investigators, whose duties require them to conduct welfare checks on behalf of minors.
• e.     Members of the Florida National Guard, who are called to active duty for service in the State of Florida in response to COVID-19.[8]

Automatically there will be a difference in coverage for state hospitals and private hospitals, even though the employment duties and risk of infection will be close to identical.

On April 6, 2020, the Florida Office of Insurance Regulation issued Informational Memorandum OIR-20-05M.[9] Providing guidance for workers’ compensation insurance related to COVID-19, this memo states: “First responders, health care workers, and others that contract COVID-19 due to work-related exposure would be eligible for workers’ compensation benefits under Florida law. See §440.151, Fla. Stat.”

However, this memo merely states the current workers compensation law and standards are still applicable. It does not go further as the CFO’s Directive does and state those cases are presumptively compensable. It only says they are per the statute. The statute being referenced is the previously mentioned “Occupational Disease” statute. This Florida Office of Insurance Regulation memo is giving the appearance of clarifying who will be covered and who will not, but truly does not do anything other than reference statutes in place.

On April 29, 2020, the governor issued Executive Order 20-112.[10] This order begins the State of Florida reopening process. How the state’s medical system and economy will recover are significant concerns. However, with more employees returning to work, there is little information known on whether contracting COVID-19 while returning to work will actually be a covered work-related injury or illness.

[1] Fla. Stat. 440.02(1)
[2] Fla. Stat. 440.151
[3] https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html
[4] https://www.flgov.com/wp-content/uploads/orders/2020/EO_20-91-compressed.pdf
[5] https://www.floridadisaster.org/globalassets/governor-essential-services.pdf
[6] https://www.flgov.com/wp-content/uploads/2020/04/Essential-Services-Additions-EO-20-91.pdf
[7] https://www.myfloridacfo.com/sitePages/newsroom/pressRelease.aspx?id=5515
[8] Id.
[9] https://www.floir.com/siteDocuments/OIR-20-05M.pdf
[10] https://www.flgov.com/wp-content/uploads/orders/2020/EO_20-112.pdf