April 2020 Legal Report


Given the recent outbreak of COVID-19, there has understandably been a great deal of concern in the public regarding exposure and contracting the disease.  That is true for all members of society including public employees, as well as private sector workers such as those who work in our offices.  In general, governmental agencies, the media, and online publications have provided very important information regarding how to stay safe (including the CDC and its website) and steps to take to continue preventing any further catastrophic outbreaks of the disease as well as to help further the “flattening of the curve.”   The question has been posed to our office many times over the last week or two on what to do if a member believes (s)he was exposed, and worse, what to do if (s)he has tested positive for the disease.  With that in mind, we believe that PBA members can use this information to best protect themselves going forward.

From a work-related perspective, many of us are in situations where we have constant interactions with the public where exposure may occur.  For uniformed personnel, this is especially problematic because not only is it an aspect of your job but also a requirement of the job.  While social distancing may be practical inside of an office environment or even with our co-workers and neighbors, such is not the case considering many of the tasks in which you engage. There is no way to limit the exposure that you might have with a member of the public.  With that being said, you can almost be guaranteed that in a situation where a member contracts the disease and wants to make it a work-related claim, the claim will be controverted on the grounds that (s)he is not covered under either the established line of duty policies or under the Workers’ Compensation Law.  We are prepared to deal with that inevitability.

While general exposures and contracting of an illness are very difficult to prove to be work related, in certain scenarios with the proper evidence, a nexus can be established between the exposure at work and the disease.  If a member believes that someone that they had direct contact and interaction with suffers with the Coronavirus or COVID-19, they should absolutely and timely document that exposure as soon as possible. The NCPD’s “Notification, Subject – Novel Coronavirus, File 2140, Number 20-023,” provides that any member who suspects that he or she has come in contact with a person suspected of being positive for COVID-19, should contact Medical Control at Extension 3170 to obtain a DOCUMENTATION CONTROL NUMBER and to keep that number in a safe place. Although obtaining a DOCUMENTATION CONTROL NUMBER will be sufficient for notifying the NCPD of your exposure, we nevertheless feel that you should also submit a non-recordable for purposes of further notifying the NCPD of your exposure   As we have already alerted members, filing a non-recordable with the Department is essential if a member believes that he or she has been exposed.  Whether that be a memo book or log book entry, or a more formal documenting procedure such as non-recordables or full  packets set forth by the employer, the member has an affirmative obligation to put the employer on notice as soon as possible in order to best protect their benefits.  If the exposure turns out to be nothing, then so be it.  However, if the member later tests positive for the disease, that initial documentation might be the piece of evidence that sets apart a valid and compensable claim from one that gets denied for a lack of nexus to the workplace.

The next step is obviously to obtain the medical documentation supporting the positive diagnosis of the disease.  That will certainly include a positive test for the disease in much the same way as any other exposure claim for any other disease or like a valid diagnostic exam, such as MRI or CT Scan, for an orthopedic injury.  With the medical documentation confirming the contraction of the disease, the member will also need a medical doctor to indicate that the doctor knew of the prior exposure at work, and he or she believes, within a reasonable degree of medical certainty, that the exposure is the cause of the member’s illness.  In Workers’ Compensation claims, that medical report is called prima facie medical evidence, and it is the foundational piece of evidence to any Workers’ Compensation claim.

Even with those steps taken by the members, we believe that most situations will involve litigation of these claims before the Workers’ Compensation Board.  The insurance carriers and self-insureds (like Nassau County) will be loath to simply accept an exposure claim, the medical costs and the compensable lost time from work as being work-related.  Thus, the claim will likely involve the case being set for trial and the member needing to testify to his or her exposure while at work and the steps taken to timely inform the employer of that exposure.

There are a few things that have been passed and measures that are being taken to augment these factors and the legal questions that will undoubtedly arise.  If a member is forced to quarantine or isolate due to testing positive for the disease or believes to have exposed to the disease, the County has indicated that the member will be placed on leave with pay status during the isolation period.  Further, the Governor’s bill also indicates that a public employee who is placed into quarantine or isolation due to the disease will be on a paid leave up to 14 days that will not affect that public employee’s sick accruals.  Thus, there are two levels of coverage that will protect our members should anyone require a period of isolation or quarantine. Beyond those prescribed periods or any further lingering disability, these will need to be litigated.

Also, any member that ends up in this situation should also keep in mind that as opposed to a physical injury such as one to the knee or shoulder, these claims of contracting the 2019 Novel Coronavirus are unlikely to end up with a monetary settlement except those resulting in lost time from work.  Therefore, the goal of these benefits is to make sure that the medical treatment required to get the member back to work is paid for by the Department, and if the member misses any time from work, that (s)he is compensated for that lost time pursuant to the applicable statutes at Workers’ Compensation rates.  In these cases, we would pursue not only Workers’ Compensation benefits but also the possibility of a line of duty claim under General Municipal Law (GML) Section 207-c.  Further, if denied by the Department, the members would be entitled to the same protections and rights under a normal line of duty claim such as the right to request Medical Review or a hearing under GML Section 207-c

Over the past several weeks, members of the department as well as members of the public have reached out to our office with these questions, among others, regarding the pandemic.  In fact, we have had many people inform us that employers are telling them that they will NOT cover COVID-19 as incurred at work giving the impression that this situation is “not covered” as work-related.  While the general rule regarding sickness and illness may confirm their instincts, the facts of the exposure matter more than anything else, and thus, a blanket rule of “This is not coverable” will not apply to a different set of facts.  In the past we have been able to get cases established regarding other diseases such as flesh-eating bacteria or Lyme Disease which were opposed by the insurance carriers.  The key is the evidence that is presented and a medical doctor indicating he or she believes that the disease was contracted at work or the exposure at work caused the infection.  Simply put, do not believe that every case involving the Coronavirus is not work related.  With a well-documented exposure, it can be covered in Workers’ Compensation and be deemed a line of duty illness in the same manner as any other disease or illness.

The other point worth mentioning is that some job titles and jobs have certain illnesses that are presumed to have been contracted due to work-related exposure.  This includes Hepatitis-C, HIV/AIDS, tuberculosis, and certain heart conditions, which have been statutorily designated as being contracted in the line of duty. Also, a host of medical conditions, including cancer, RADS, COPD, GERD and many others are presumed to have been incurred in the performance of World Trade Center duty. However, please note that these presumptions, nor any others, DO NOT apply to COVID-19. Until medical and causal relation presumptions exist for uniformed personnel regarding COVID-19, if ever, each member must document his/her exposure as best as possible in order to protect his or her benefits and rights, in order to be able to successfully litigate the issue of COVID-19 causal relationship.

Of course, if you have any questions or concerns, please never hesitate to contact our office at 516-941-4403 or by email to mrada@fbrlaw.com.  One of our experienced and talented legal professionals will be happy to walk through the process with you and advise you properly regarding your rights to benefits covering your exposure. Stay safe and stay well.