Alan A. Ayers, MBA, MAcc is Chief Executive Officer of Velocity Urgent Care and is Practice Management Editor of The Journal of Urgent Care Medicine.

Urgent Message: Exposure to coronavirus by an urgent care provider or staff can lead to absence from work, unplanned medical expenses, and invoke short-term disability. Take precautions and create a business infectious disease outbreak response plan that you can share with everyone at your facilities.

“Wash your hands!”

Anytime you hear a report about COVID-19, the recommendations almost always end with this command. It’s good advice, and those in the healthcare field need to heed this (and much more) to stay protected from this disease. But what happens when a healthcare worker such as a physician assistant or receptionist at an urgent care facility is infected? How does the owner and managers of the urgent care center address this “occupational exposure?”

Background
The 2019 novel coronavirus, which we’ve come to refer to as COVID-19, is an infectious disease with the highest potential transmission rate among healthcare workers, first responders, schoolteachers, and others whose positions bring them into contact with a large number of sick people.1

This article will discuss the growing concern among urgent care facility employees as to how owners and managers will protect them from COVID-19. The question being raised is whether the COVID-19 an occupational disease.2

 

Discussion
The issue of occupational diseases in the urgent care setting has been explored in the past with a focus on the more general influenza, where it’s accepted that the flu is ubiquitous, community-acquired, and has a long incubation period making it difficult to impossible the time/source of infection as being job-related.3

COVID-19 can be set apart from influenza in terms of urgent care exposure, and thought of as more akin to HIV infection from a bloodborne pathogen exposure in the urgent care. In that situation, there is a specific and identifiable source, a mode of transmission, and awareness that it’s not a disease staff would typically be exposed to outside of work in a healthcare setting.

With that preface, there are specific elements that must be satisfied before any illness or disease—including COVID-19—qualifies as occupational and thus compensable under workers’ compensation:

  • The illness or disease must be “occupational,” meaning that it arose out of and was in the course and scope of the employment; and
  • The illness or disease must arise out of or be caused by conditions “peculiar” to the work.4

Simply stated, to be a compensable injury, the disease must occur as a result of the ill worker’s employment. Further discussion on these required elements follows.

The Definition of ‘Occupational Disease’
There is a range of definitions for occupational disease. For example, on the simple side is the definition in Washington, where it means “such disease or infection as arises naturally and proximately out of employment under the mandatory or elective adoption provisions of this title.”5-7 In contrast, Ohio statutes define “occupational disease” with greater detail:

[A] disease contracted in the course of employment, which by its causes and the characteristics of its manifestation or the condition of the employment results in a hazard which distinguishes the employment in character from employment generally, and the employment creates a risk of contracting the disease in greater degree and in a different manner from the public in general.8-11

Some states require more than this. For example, Arizona has six requirements, including proof of a “direct causal connection between the conditions under which the work is performed and the occupational disease.”12

In all of the definitions, there must be a sufficient causal connection or link between the employment and the injury or the contracting of the disease.13 Courts will look at the degree to which there is a sufficient causal connection between an employee’s disease and his employment to justify workers’ compensation benefits.14 Again, courts and legislatures have defined this causal connection in a variety of ways. In most cases, “it depends,” which is the answer to most questions of legal analysis. Here, the answer hinges on the totality of the facts and circumstances surrounding the incident, including:

  1. The proximity of the place of the contact to the place of employment
  2. The degree of control the employer had over the place of the contact
  3. The benefit the employer received from the contracting employee’s presence at the place of the accident15

These factors are not exhaustive, but are “illustrative of the facts to be considered under the totality of the circumstances.”9 For example, one author notes that the determination of whether an illness is occupational, peculiar to the work, and ultimately compensable is not necessarily based on the disease in question but on the facts surrounding the worker’s illness. Some of the factors analyzed include:

  • The timing of the symptoms in relation to work, and whether they worsen at work and improve following prolonged absence from work
  • Whether other staff at the urgent care center exhibit or have experienced similar symptoms
  • The commonality of the illness, such as COVID-19, to healthcare workers in the industry
  • A staff member’s predisposition to the illness (such as an allergy or other medical issue)
  • The worker’s personal habits and medical history.

Notably, bad habits and poor medical history (and heredity) can obscure the relationship between the occupation and the illness.4 The failing of an urgent care employee to wash her hands may be a contributing factor and may be used in an urgent care owner’s defense to an employee’s worker’ compensation claim or civil lawsuit.

Best Practices for Urgent Care Owners
In addition to rigorous and frequent handwashing, urgent care owners should institute a business infectious disease outbreak response plan for employee and patient safety, as well as to mitigate any liability in the event that an employee contracts COVID-19.

Owners should make certain that the plan is flexible and to involve employees in developing and reviewing the plan. This can and should include a thorough discussion of the facility’s plan to determine if there are any gaps or problems in the plan that need to be addressed. In addition, share your plan with all urgent care employees and explain the types of human resources policies, workplace and leave flexibilities, and pay and benefits that may be available to them.16

It’s also important for urgent care owners with more than one business location to provide local managers with the authority to take appropriate actions outlined in their business infectious disease outbreak response plan based on the condition in each area.17

An employee plan for COVID-19 should include the following elements:

  • The process for handling suspected COVID-19 cases, including front desk screening protocols.
  • Actively encouraging sick employees to stay home (as well as those who have been caring for sick family members), implementing flexible leave policies including waiving the requirement for a doctor’s note or accelerating the timeframe upon which short-term disability benefits kick in.
  • Physically separating employees who show up at work with symptoms, or otherwise appear sick, from other employees and sending them home when appropriate.
  • Flexible work policies for non-clinic, administrative personnel, to work from home.
  • Teaching clean habits like cough and sneeze mitigation and effective handwashing techniques.
  • A description of risk mitigation steps including personal protective equipment (eg, eye guards, face masks).
  • Routine cleaning focused on disinfecting surfaces and making antiseptic wipes available for employees to further wipe down surfaces such as doorknobs and keyboards.
  • Limiting travel when appropriate.
  • If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA).

References

  1. U.S. Department of Health & Human Services, U.S. Centers for Disease Control and Prevention (CDC), CDC in Action: Preparing Communities for Potential Spread of COVID-19. Available at: https://www.cdc.gov/coronavirus/2019-ncov/php/preparing-communities.html. Accessed February 23, 2020.
  2. Centers for Disease Control and Prevention. Interim guidance for businesses and employers. Available at: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html. Accessed February 26, 2020.
  3. Ayers AA. Employer liability for flu infection. J Urgent Care Med. Available at: https://www.jucm.com/employer-liability-for-flu-infection/. Accessed March 24, 2020.
  4. Boggs CJ. Coronavirus, pandemics and workers’ compensation. Insurance J. Available at: https://www.insurancejournal.com/blogs/academy-journal/2020/02/19/558705.htm. Accessed March 24, 2020.
  5. Wash. Rev. Code § 51.08.140.
  6. Polson Logging Co. v. Kelly, 195 Wash. 167, 80 P.2d 412, 1938 Wash. LEXIS 391 (Wash. 1938).
  7. Rambeau v. Department of Labor & Industries, 24 Wash. 2d 44, 163 P.2d 133, 1945 Wash. LEXIS 315 (Wash. 1945).
  8. Ohio Rev. Code Ann. § 4123.01(F).
  9. Fisher v. Mayfield, 49 Ohio St.3d 275, 277, 551 N.E.2d 1271 (Ohio1990).
  10. Carnahan v. Morton Bldgs., Inc., 2014-Ohio-4139, ¶ 24 (Ohio App. 2014).
  11. Strome v N. R. Hamm Quarry. 1998 Kan. App. Unpub. LEXIS 1200, at *6-7 (Kan. App. Dec. 31, 1998).
  12. Aguirre v. Indus. Comm’n of Ariz., 245 Ariz. 587, 590, 432 P.3d 946, 949 (Ariz. App. 2018), citing Ariz. Rev. Stat. § 23-901.01(A).
  13. Hinson v. Cont’l Tire the Ams., 832 S.E.2d 519, 525 (N.C. App. 2019)
  14. Matter of Corina-Chernosky v Dormitory Auth. of State of N.Y., 157 AD3d 1067, 1068, 69 N.Y.S.3d 182 (N.Y. App. Div. 2018)
  15. Lord v. Daugherty, 66 Ohio St.2d 441, 423 N.E.2d 96 (Ohio 1981), syllabus.
  16. CDC, Interim Guidance for Businesses and Employers.
  17. CDC in Action: Preparing Communities for Potential Spread of COVID-19.
‘Occupational Exposure’ to COVID-19

Alan A. Ayers, MBA, MAcc

Chief Executive Officer of Velocity Urgent Care, LLC and is Practice Management Editor of The Journal of Urgent Care Medicine
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