Kentucky’s Amendments to the Workers’ Compensation Statutes Due to COVID-19

workers compensation program

The coronavirus 2 (SARS-CoV-2) had escalated into a pandemic in just a few months after its outbreak in China during the last quarter of 2019. Even in the United States, the Coronavirus disease (COVID-19) is taking its toll on the lives of people from all walks of life.

The high risks for exposure especially to certain groups of workers such as first responders, health care workers, and essential services providers, prompted governors of different U.S. states to amend their workers’ compensation laws. Incidentally, the Commonwealth of Kentucky is one of those States.

On March 6, 2020, and in response to the COVID-19 pandemic, Governor Andy Beshear issued Executive Order 2020-215 declaring the Commonwealth of Kentucky in a state of emergency.

On March 16, 2020, Governor Beshear signed another executive order, EO 2020-235 to allow people working in Kentucky to avail of unemployment benefits faster than under state law.

On April 9, 2020, Governor Beshear issued Executive Order 2020-277 directing payment to employees who are removed from work due to occupational exposure to COVID-19. This implies that an employee covered by this EO and the Kentucky Workers’ Compensation Act can claim workers’ compensation benefits if they contract COVID-19 due to occupational exposure. A reputable workers comp provider network Kentucky employers know well can help you with this.

The Exact Directives of Governor Beshear Under EO 2020-277

“1. An employee removed from work by a physician due to occupational exposure to COVID-19 shall be entitled to temporary total disability payments          according to KRS 342.730(1)(a) during the period of removal even if the employer ultimately denies liability for the claim. For the exposure to be “occupational,” there must be a causal connection between the conditions under which the work is performed and COVID-19, and which can be seen to have been followed as a natural incident to the work as a result of the exposure occurred by the nature of the employment;

2. The limitations in KRS 342.040(1) [seven-day waiting period] are suspended and temporary total disability payments made according to this Order shall be payable from the first day the employee is removed from work;

3. For this Order, it shall be presumed that removal of the following workers from work by a physician is due to occupational exposure to COVID-19: employees of a healthcare entity; first responders (law enforcement, emergency medical services, fire departments); corrections officers; military; activated National Guard; domestic violence shelter workers; child advocacy workers; rape crisis center staff; Department for Community Based Services workers; grocery workers; Postal Service workers; and child care workers permitted by the Cabinet for Health and Family Services to provide childcare in a limited duration center during the State of Emergency.

4. This Order shall apply to all insurance carriers writing policies providing workers’ compensation insurance coverage in the Commonwealth of Kentucky, self-insured groups, and any employer carrying its own risk and authorized to self-insure in the Commonwealth of Kentucky; and

5. Payment by the employer or its payment obligor according to this Order does not waive the employer’s right to contest its liability for the claim or other benefits to be provided.

This order shall be in effect for the duration of the State of Emergency under Executive Order 2020-215 or until this Order is rescinded by further operation of the law.”

DWC Implementing Guidelines

After EO 2020-277 was issued, Robert L. Swisher, Commissioner of the Kentucky Department of Workers’ Claims (DWC), issued a guidance dated April 15, 2020 manifesting the application of the order.

In his guidance, the Commissioner states that EO 2020-277 will be applied prospectively from April 9, 2020 onward while the emergency period is in effect. He emphasizes that:

The temporary total disability benefit (TTD) is applicable only to workers who are removed from their job by a physician because of occupational exposure to COVID-19.

The temporary total disability benefits paid under EO 2020-277are subject to offset by virtue of the Family and Medical Leave Act (FMLA) benefits in consonance with the federal Families First Coronavirus Act.

EO 2020-277 does not extend benefits to workers who are not covered under the Kentucky Workers Compensation Act.

Workers belonging to the categories below who are removed from work due to occupational exposure to COVID-19 shall be eligible for benefits or to seek help from a workers compensation provider network immediately upon their removal.

Employees of a healthcare entity

First responders (law enforcement, emergency medical services, fire departments)

Corrections officers

Military

Activated National Guard

Domestic violence shelter workers

Child advocacy workers

Rape crisis center staff

Department for Community Based Services workers

Grocery workers

Postal Service workers, and

Child care workers permitted by the Cabinet for Health and Family Services to

provide childcare in a limited duration center during the State of Emergency

EO 2020-277 intends to presume that if a doctor initially finds that the employee’s COVID-19 was contracted at work, he/she should enjoy the presumption that the infection was work-related and should be deemed eligible for benefits immediately upon removal. This means the infected employee doesn’t have to wait for the seven day period to file a workers compensation claim or seek help from a workers comp provider network Kentucky business managers trust.

The COVID-19 outbreak has wreaked havoc on a global scale. It has devastated economies and destroyed relationships between people and countries.

As citizens of the world, we should stay safe and obey protocols set forth by health experts. By staying safe, we are doing our part in containing the COVID-19 outbreak and heal as one.