Is the WC System Ready for the COVID-19 Virus? Live Updates
Jon L. Gelman
It seems that every decade a new pandemic emerges on the world scene and complacency continues to exist in the workers' compensation arena to meet the emerging challenges of infectious disease.
Initially, China reported that 16 healthcare workers have already been infected with coronavirus. That country is notorious about underreporting serious health issues. China has imposed severe travel and commercial restrictions for over 33 million residents in infected communities.
The rapidly spreading 2019-nCoV [coronavirus] virus emerged rapidly around the globe and confirmed cases have been reported in the United States and Canada. The president of the World Health Organization [WHO] has declared the coronavirus a global health emergency [Public Health Emergency of International Concern] and more recently a Global Pandemic. The UN World Health Organization formally named the virus COVID-19. The WHO completed a mission to China and published a report including the pattern of disease progress for COVID-19 in China and also made a list of recommendations for preparation and action.
The workers' compensation system in the US needs to be ready for the challenge on the horizon. Is the system ready to compensate workers who should take time off from work for undiagnosed 2019-nCoV even if a mandatory quarantine has not been issued? If transportation has been restricted because of symptoms should workers' be provided benefits if they have been exposed to a co-worker or family member who presents with symptoms even if not a confirmed case? What will be required to prove causal relationship between occupational exposure and COVID-19? Will the workers' compensation be efficient enough to respond to undiagnosed 2019-nCoV even before a co-worker has been confirmed infected to avoid the potential of the further spread of disease?
In 2007 the US CDC published a document on pre-planning for a pandemic that addressed social distancing. It focussed community mitigation guidelines. "This document provides interim planning guidance for State, territorial, tribal, and local communities that focuses on several measures other than vaccination and drug treatment that might be useful during an influenza pandemic to reduce its harm. Communities, individuals and families, employers, schools, and other organizations will be asked to plan for the use of these interventions to help limit the spread of a pandemic, prevent disease and death, lessen the impact on the economy, and keep society functioning. This interim guidance introduces a Pandemic Severity Index to characterize the severity of a pandemic, provides planning recommendations for specific interventions that communities may use for a given level of pandemic severity, and suggests when these measures should be started and how long they should be used." Community Mitigation Guidance, CDC, 2007.
The 2009 influenza pandemic (flu) had created a new framework of acts and regulations to respond the World Health Organization's (WHO) phase 6 pandemic alert. Governmentally imposed employment disruptions resulting from regulatory work disruptions to prevent the spread of disease maybe massive. While workers' compensation was envisioned as a summary and remedial social insurance program, the challenges facing the workers' compensation system to deliver benefits as promised may be seriously burdened and compromised.
In the past there was a massive global reaction to the 2009 influenza pandemic. On April 25, 2009, the WHO director-General Dr. Margaret Chen declared the H1N1 virus outbreak as a “Public Health Emergency of International Concern.” The international declaration indicated that a coordinated international response was potentially necessary to prevent curtail the spread of the disease that was perceived as a public health risk. Recommendations to restrict both trade and travel may follow. The current President of the WHO has hesitated about declaring a world health emergency even though the 2019-nCoV [coronavirus] virus has already spread across the globe. This delay compounds issues of credibility that China's past actions have established.
Even future virus strains are being tracked now. Nextstrain provides real-time tracking of pathogen evolution. Nextstrain is an open-source project to harness the scientific and public health potential of pathogen genome data. It provides a continually-updated view of publicly available data alongside powerful analytic and visualization tools for use by the community.
The United States had structured its response on both a State and Federal level to the 2009 influenza alert. The Public Health Service Act (PHS) permitted the Secretary of Health and Human Service (HHS) to access a special emergency fund, allows or the use of unapproved medical treatments and tests, and allows waiver of certain reimbursement of Medicare and Medicaid expenses, and waived penalties and sanctions for violation of the HIPAA Privacy Rule requirements. Additionally, the President was permitted to issue an emergency declaration under The Stafford Act to co-ordinate emergency relief under State and Federal programs, ie. use and distribution of anti-viral medications.
Potential closings and restrictions have raised issues as to what programs, if any, will be able to provide benefits to the employees because of the involuntary nature of the closings and disruptions. A Harvard School of Public Health study reveals that 80% of businesses foresee severe problems in maintaining operations if there was an outbreak in 2009.
The workers' compensation system could be requested to provide temporary disability benefits for occupational disease absences on a massive scale never before experienced. Pre-emption by superseding emergency regulatory actions may curtail employment that will trigger the implementation of State workers' compensation benefits. The employer and the workers' compensation insurance carriers will be required to pay temporary disability and medical benefits as a direct consequence of efforts to prevent the spread of a communicable disease. The carefully crafted employee-employer notification structure integrated into the workers' compensation system may be partially or entirely disrupted by the consequences and chaos of the global health emergency.
Workers' Compensation claims arising out of a potential pandemic 2019-nCoV [coronavirus] virus will need to fit into the convoluted framework statutory acts and regulation. Reimbursement from the usual collateral third-party reimbursement sources may be restricted. In addition to the Doctrine of Sovereign Immunity, enjoyed by the Federal and State governments, other legislation including The “Public Readiness and Emergency Preparedness Act" (PREP Act) limits liability of others under certain specific emergency circumstances.
The enormity of a 2019-nCoV [coronavirus] virus pandemic presents a new and novel challenge to the system and one that must be considered by both Federal and State planners. Workers' Compensation programs have adapted to emergencies before including natural disasters and terrorist attacks. The urgency of the situation requires that the system be prepared now.
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