Returning to the Workplace: Employer Liability and Workers' Compensation after COVID-19

By: Robert Holden, Senior Vice President & Principal

A year ago, we noted that states were focusing on ways to provide direction to businesses attempting to operate as pandemic restrictions would be relaxed. Then, employers were reopening their businesses and contending with the safety of their employees and the potential liabilities they would face for making the wrong decisions. As we detailed in that overview, state governments were looking for ways to address these concerns by directly limiting employers' liabilities and workers' compensation insurance regulation changes.

Since that time, states have enacted legislation enacting policies taking both the direct liability limitation and workers' compensation paths. The following is an overview of what we have seen since June of 2020.

Direct Liability Limitations 

Since last year, states have provided limited liability protections for employers.  In late 2020, six states were active in enacting legislation or issuing liability protections.  Arkansas, Idaho, Iowa, and Kansas all passed general tort liability limitations related to COVID.  Additional legislation was passed in Georgia and Kansas specifically addressing health care workers and facilities. 

In 2021, the rate of enactments increased substantially, with additional liability protections passing in 18 states. Instead of general liability protection, states more frequently elected to take much more focused action.  Arkansas, Georgia, Idaho, and Kansas passed legislation to extend their existing policies. Indiana, Montana, Nebraska, North Dakota, South Carolina, South Dakota enacted new policies creating limited protections to healthcare-related employers. 

Some states implemented broader policies, with Alabama, Arizona, and Florida extending protections to specific business entities, health care providers, educational entities, governmental entities, cultural or religious institutions, and Kentucky extending specific protections to personal residences.  Only Indiana, West Virginia, Wisconsin, and Wyoming issued broad-based protections.

Workers Compensation Policies

As we mentioned last year, workers' compensation plans do not cover communicable diseases like COVID-19.  Therefore, employees, employers, and state governments assessed how exemptions and modifications could be made to accommodate the pandemic. Increasingly, states began allowing for the presumption that a COVID-19 infection is a workplace injury.

In 2020, Alaska, Minnesota, Utah, and Wisconsin passed legislation that protected first responders and healthcare workers through workers' compensation with presumptions that COVID 19 infections constituted a workplace injury. Arkansas, Florida, Kentucky, Illinois, New Hampshire, Washington, and Wyoming implemented similar policies by executive order. California, New Jersey, and Vermont enacted broad-based presumptions for employee COVID 19 infection as a workplace injury. 

Many of these policies were expanded in 2021, with 13 states and the District passing legislation to address COVID 19 within their workers' compensation programs. Illinois, Minnesota, and Wyoming extended their policies from 2020.  Alabama, Missouri, and Texas passed targeted legislation aimed at front-line workers. Finally, a growing number of states, including Alaska, Arkansas, Connecticut, District of Columbia, Tennessee, Virginia, and Washington, passed broad-based policies.

As you consider these issues, Stateside's expertise can be a resource. We are tracking these issues in all 50 states and at the federal level of government to prepare and inform those who are making the challenging decisions about reopening their businesses. 

For more help navigating the regulatory framework in all the places you work, contact Stateside.