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Paying Indemnity Benefits and Other Common Scenarios in Light of COVID-19 in Georgia

Written by: Meredith Knight, Esq.

Last week, we posted our conclusions regarding the compensability, or really, lack thereof, regarding COVID-19 in the workplace as specifically pertaining to the Georgia Workers’ Compensation Act. What follows are three common scenarios employers currently experience that raise further questions about COVID-19 in the workplace. First, please review our initial post regarding the reasons why COVID-19 will almost never be compensable in Georgia. After reviewing, we hope the following provides additional insight, discussing employees in contact with infected co-workers, deliveries to “hot zones,” and indemnity payments in the event of business closures.

SCENARIO ONE: Contact with infected co-workers

Employee A contracts COVID-19 and tests positive for the virus. Employee B is in frequent, direct contact with Employee A before the positive test, becomes ill and starts to miss work due to his own diagnosis of COVID-19. In this scenario, COIVD-19 remains a disease to which the general population is exposed, and cannot qualify as an occupational disease. As a result, Employee B has not sustained a compensable workers’ compensation injury. There was no accident arising out of and in the course of employment. To obtain a finding of a compensable event by contracting COVID-19, the burden of proving that the disease resulted naturally and unavoidably from an accident is on the claimant, and this is not an easy burden to meet.

SCENARIO TWO: Deliveries to “hot zones” and food service workers.

What about employees who make deliveries to hospitals, nursing homes, or governmental facilities; or, a trucker making deliveries to a pharmacy or grocery store; or, a food preparation associate who comes in contact with an infected customer and then becomes ill? COVID-19 is a disease to which the general public is exposed, and to which the claimant may have had substantial exposure outside of employment. COVID-19 is not and cannot be an occupational disease, so contracting COVID-19 in each of the above instances is not a compensable workers’ compensation event in Georgia. Just as in the above scenario, the burden of proof is on the claimant to prove the disease resulted naturally and unavoidably from an accident, and this will be difficult to establish. Please see our original post for our discussion of healthcare workers and first responders.

SCENARIO THREE: Indemnity in light of business closures: TTD and TPD

A third scenario revolves around whether indemnity benefits are due to a claimant as a result of a business closure. In Georgia, the analysis will be the same whether the closure is state mandated or a business choice. If the claimant is receiving temporary total disability (TTD) indemnity benefits and no light duty offer has been made before the closure, the TTD benefits must continue. If the claimant is already working on light duty and has done so for more than 15 days, TTD benefits do NOT need to be recommenced without proof that the claimant is unable to obtain other suitable employment because of the original injury. Remember that COVID-19 and business closures have nothing to do with the claimant’s injury. Unemployment benefits are available for those laid off or out of work due to a business closure.

A related scenario will be slightly different: a claimant working light duty and receiving temporary partial disability (TPD) will continue to receive TPD until the employer/insurer can prove that he would no longer have a reduction in earnings due to the injury. See White v. Nantucket Industries, 214 Ga. App. 544 (1994). In most instances, TPD benefits will need to continue in the face of business closures.

Please keep reaching out to our HBS Workers’ Comp team with your questions and concerns. Each scenario is unique, but the conclusion will almost always be the same.