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(c) 2020 Jon L Gelman, All Rights Reserved.

Tuesday, February 18, 2020

Is the workers' compensation system ready for the 2019-nCoV [coronavirus] virus? [Updated]

Is 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 is emerging rapidly around the globe and confirmed cases have been reported in the United States and Canada. The president of the World Health Organization has declared the coronavirus a global health emergency [Public Health Emergency of International Concern].The UN World Health Organization formally named the virus COVID-19.

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? 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?

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. 

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.

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.

The US National Biodefense Science Board on January 31, 2020 issued a Declaration that the 2019 Novel Coronavirus (2019-nCoV) presents a Public Health Emergency for the United States. This action triggers widespread Federal authority under several laws including Public Law 113-5 (March 13, 2013) 127 Stat. 161. ‘‘Pandemic and All-Hazards Preparedness Reauthorization Act of 2013’’[PAHPRA]. See also,  Pandemic and All-Hazards Preparedness Act of 2006 (PAHPA),
Public Readiness and Emergency Preparedness Act of 2005 (PREP Act), Project BioShield Act of 2004, and Health Security and Bioterrorism Preparedness and Response Act of 2002 (Bioterrorism Act).

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.

Read more about 2019-nCoV
Daily situation report  - UN World Health Organization [WHO] as updated

Situation Dashboard - - UN World Health Organization [WHO] as updated

Occupational Safety and Health Administration [OSHA] Standards & Workers' Rights As updated

Coronavirus Disease 2019 (COVID-19) US CDC - Live Updates 

Daily briefing on novel coronavirus cases in China (People's Republic of China) Live Updates

Center for Infectious Disease Research & Policy (CIDRAP) Novel Coronavirus (COVID-19) Resource Center - Live Updates
Coronavirus - Latest Live Updates NYTimes

Coronavirus Statistical Counters Worldmeter.com) Live Updates

News About Coronavirus - British Medical Journal: Live Updates

COVID-19 Outbreak: Rights, roles, responsibilities of health workers, including key considerations for occupational safety and health WHO

Evidence of SARS-CoV-2 Infection in Returning Travelers from Wuhan, China, NEJM, February 18, 2020 DOI: 10.1056/NEJMc2001899

China disinfects bank notes and quarantines them for 14 days as Beijing announces 143 new coronavirus deaths and global toll rises past 1,600 Daily Mail 2-15-2020

China says 1,716 health workers infected by coronavirus, six dead Reuters 2/14/2020

CDC Update on Novel Coronavirus - Transcript of Telebriefing 2/12/2020


Incubation period of 2019 novel coronavirus (2019-nCoV) infections among travelers from Wuhan, China, 20–28 January 2020, Eurosurveillance, Volume 25, Issue 5, 06/Feb/2020
Severe acute respiratory syndrome-related coronavirus – The species and its viruses, a statement of the Coronavirus Study Group, bioRxiv 2020.02.07.937862; doi: https://doi.org/10.1101/2020.02.07.937862 .
Patel A, Jernigan DB. Initial Public Health Response and Interim Clinical Guidance for the 2019 Novel Coronavirus Outbreak — United States, December 31, 2019–February 4, 2020. MMWR Morb Mortal Wkly Rep. ePub: 5 February 2020. DOI: http://dx.doi.org/10.15585/mmwr.mm6905e1

“First Case of 2019 Novel Coronavirus in the United States,” Michelle L. Holshue, M.P.H., Chas DeBolt, M.P.H., Scott Lindquist, M.D., Kathy H. Lofy, M.D., John Wiesman, Dr.P.H., Hollianne Bruce, M.P.H., Christopher Spitters, M.D., Keith Ericson, P.A.-C., Sara Wilkerson, M.N., Ahmet Tural, M.D., George Diaz, M.D., Amanda Cohn, M.D., LeAnne Fox, M.D., Anita Patel, Pharm.D., Susan I. Gerber, M.D., Lindsay Kim, M.D., Suxiang Tong, Ph.D., Xiaoyan Lu, M.S., Steve Lindstrom, Ph.D., Mark A. Pallansch, Ph.D., William C. Weldon, Ph.D., Holly M. Biggs, M.D., Timothy M. Uyeki, M.D., and Satish K. Pillai, M.D.et al., for the Washington State 2019-nCoV Case Investigation Team*, NEJM 1/30/2020, DOI: 10.1056/NEJMoa2001191.

U.S. Official Promise "Aggressive Measures" to Contain Coronavirus 01-03-20 NYTimes

US-HHS Declares Public Health Emergency for US for 2019 Novel Coronavirus 01-31-2020 has.gov

Clinical features of patients infected with 2019 novel coronavirus in Wuhan, China 01-24-2020 Lancet

CDC Confirms Person-to-Person Spread of the Coronavirus in the United States 01-30-2020 CDC

First case of person-to-person transmission of Wuhan virus in the US is confirmed 01-30-20 CNN

World Health Organization [UN] Declares Global Health Emergency 01-30-2020 (WHO)

Senator Edward J Markey Letter to President Trump 01-27-2020

Ten of thousands likely infected now: HKU experts 01-27-2020

In bid to curb virus, China arms tell staff to work from home even after holidays end 01-27-2020 (Reuters)

CDC 2019-nCoV page

Should workers be vaccinated against bioterrorism 166 N.J.L.J.1173 (December 31, 2001)
….
Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters). For over 4 decades the Law Offices of Jon L Gelman 1.973.696.7900 jon@gelmans.com has been representing injured workers and their families who have suffered occupational accidents and illnesses.

Updated: 02-19-2020

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