NYS Workers’ Compensation & COVID-19: What to Do if You Test Positive for Coronavirus.

Sean Patrick Riordan

The COVID-19 health crisis has struck New York in unfathomable ways, every one of us is experiencing a personal impact. This particular article is directed to those workers that have received a positive COVID-19 test result. I have been asked on countless occasions whether a Workers’ Compensation claim should be filed? The answer is, as always, complex. However, I and my law firm (MDASR) are filing applications for NYS Workers’ Compensation benefits for all “Essential Personnel.”

Important in this discussion is an actual positive COVID-19 test result. There is no need, and in fact it is not recommended, to file a Workers’ Compensation claim if you simply believe you have potentially been exposed to the coronavirus in the course of your duties. If you believe you were simply exposed to the virus please see the article at https://licomplaw.com/uniformed-personnel-and-the-coronavirus/ to review the necessary steps you should take. To be certain, as explained below, following those steps when exposed are extremely important if you are subsequently diagnosed with the virus and we are forced to file a Workers’ Compensation claim. However, only those diagnosed with the virus should take these next steps.

First and foremost, who are the essential personnel that I am referring to? Police Officers, Correction Officers, Probation and Parole Officers, EMS/EMT’s, Nurses, Transit Workers, Social Workers, Maintenance Workers and all those additional titles that have been mandated to report to work pursuant to Gov. Cuomo’s Executive Order 202.6. As a result of such designation, all “Essential Personnel” have been continuously exposed to the virus are included in this discussion.

The complexity of filing a COVID-19 Workers’ Compensation claim is the legal burden placed onto the worker in establishing that their impairment is related to their work duties. As discussed in the exposure article referenced above, frequently a worker is unable to specifically pinpoint the person, or place, to whom they were exposed. As this crisis continues to expand exponentially on a daily basis, with greater segments of the population contracting this virus, it leaves workers vulnerable to an insurance carrier defense that an claimant contracted the virus outside the scope of their duties, i.e. in their daily lives. Therefore, Exposure Forms are absolutely necessary; they will enable us to demonstrate your exposures during the course of your duties.

Once you have a positive COVID-19 test result, the first step in the process is to place your employer on notice of your work-related impairment by filing your employer’s applicable Injured Employee Report. Please note, this does not officially start your Workers’ Compensation claim with the State of New York, you must proceed to step 2 in order to properly bring a compensation claim.

Second, as is the case with all Workers’ Compensation cases, an individual must file an Injured Employee C3 report with the New York State Workers’ Compensation Board to begin their claim of benefits. At this juncture, especially due to the complexity of these type claims, you should consult with an attorney. Most attorneys, and certainly MDASR, will help you prepare and file this form.

To be clear, at this juncture, due to state of current law as discussed above, it is unlikely that these claims will be approved. Therefore, I and MDASR continue to work closely with legislative and union leaders to push amendment to Workers’ Compensation Law; an amendment that would create a legal presumption that an “Essential Personnel’s” positive COVID-19 diagnosis is related to their employment duties and responsibilities.

As always, if you or your co-workers need any assistance with this, or any other Workers’ Compensation/Social Security or Disability Pension matter, I am here to help. I can always be reached at (212) 612-3198 or my email Sean@nycomplaw.com.

Be well and be safe!