Written by: Rayford H. Taylor, Esq.

Florida’s Chief Financial Officer, Jimmy Patronis, has issued Directive 2020-05 to provide workers’ compensation coverage to “frontline state employees” who contract COVID-19.  Florida’s Risk Management Department provides workers’ compensation coverage to state employees.  The Risk Management Department will now have to provide workers’ compensation coverage to such workers who contract the virus.  “Frontline state employees” are defined by Directive 2020-05 as essentially law enforcement officers, firefighters, EMTs, corrections officers, state employees in the health care field, child safety investigators, and members of the Florida National Guard on active duty in response to the COVID-19 crisis.

The Florida Office of Insurance Regulation subsequently issued an information bulletin which stated all insurers and entities regulated by the Office of Insurance Regulation are expected to provide workers’ compensation coverage to first responders, health care workers, and others that contract the virus due to work-related exposure.  Unfortunately, the information bulletin does not articulate or specify the types of private employment employees (if any) are covered by the bulletin.

Florida employers are required to provide workers’ compensation coverage to all employees pursuant to Florida Statute 440.09.  However, Florida Statute 440.151 governs occupational diseases and requires a very high standard of proof before an employee can receive workers’ compensation benefits for an occupational disease.  The employee must establish through epidemiological studies that they were exposed during the course of work to the precise disease sustained by the employee.  See Seminole County Government v. Bartlett, 933 So.2d 550 (Fla. 1st DCA 2006).

Meeting the occupational disease test may be possible for doctors, nurses, first responders, and other health care workers based upon the medical evidence we now have and the degree to which they would come in contact with patients who have been identified to have the COVID-19 virus.  The compensability of other workers will be a gray area.  It is not clear whether grocery store employees, cleaning crews, warehouse workers, restaurant workers, food bank workers, delivery drivers, package delivery individuals, or others who are continuing to work to provide services will be entitled to workers’ compensation benefits in the event they contract the virus.  There is going to be tension and dispute between the current requirements set forth in the Florida Statutes and the recent directive and information bulletin issued by Florida’s CFO and the Office of Insurance Regulation.

It can be assumed counsel for employees who contracts the virus will argue they are entitled to workers’ compensation benefits because they contracted the condition as a result of work-related activities.  The question of whether it is a compensable condition or an occupational disease will probably be litigated.  The result of the outcome of such litigation will depend upon a variety of factors involving the facts, the medical evidence, and the specific work activities of a particular employee.

There is no question this country is dealing with a pandemic that maybe with the country for some time.  However, the question of whether a particular employee who contracted the virus during the course and scope of employment and as a result of the particular type of employment will be an issue to be resolved by the courts.  Workers’ compensation insurers in Florida will be forced to address this issue in the near future.  Until guidance is provided by either the courts or by the Office of Insurance Regulation, questions will have to remain unanswered.

Employers and carriers should consult defense counsel if there is concern or a question about employees who could contract COVID-19, or if they need advice concerning the handling of such claims.

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