L.B. Asked: Does Workers’ Compensation Cover Long COVID?

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On October 27, 2022, S.B. Asked:

“I was exposed to COVID-19 at work several months ago. Because I only experienced mild symptoms, I didn’t file a workers’ compensation claim. I have recently started experiencing symptoms of long COVID, including chronic fatigue and cognitive impairment, and I am not unable to work. Can I file a workers’ compensation claim?”

Answer:

As discussed in our previous post, establishing a workers’ compensation claim for COVID-19 can prove to be challenging because the claimant typically must prove that their illness originated from a workplace exposure to COVID-19. Establishing a workers’ compensation claim for long COVID can be even more challenging because the claimant may not begin experiencing symptoms until several months after their initial exposure to COVID-19. Such a delay between the workplace exposure and the onset of the claimant’s symptoms makes it more difficult for the claimant to prove that the workplace exposure to COVID-19 was the cause of the long COVID symptoms they began experiencing months later.

The National Council on Compensation Insurance (NCCI) published a report in October 2022 that analyzed workers’ compensation claims nationally. This report found that 47 percent of hospitalized COVID-19 patients with workers’ compensation claims continued to experience long COVID symptoms 30 days after hospital discharge. Alarmingly, over 80 percent of all workers’ compensation claims involving long COVID are associated with occupations related to health care and emergency response. These figures demonstrate how these professions are disproportionately impacted by occupational exposure to COVID-19.

An employee who files a workers’ compensation claim during their period of acute illness with COVID-19 may be able to extend their existing claim if they begin experiencing symptoms of long COVID. However, if a claim was not originally filed, the claimant may be able to establish a new workers’ compensation claim retroactively. Some states have permissive statutes of limitation for filing workers’ compensation claims, while others are very restrictive. A claimant’s ability to file a claim in this situation will depend on the rules of their state’s workers’ compensation program.

For example, Nevada requires claimants to file a workers’ compensation claim within 90 days of the date of the injury. Nev. Rev. Stat. Sec. 616C.015. If the claimant begins experiencing symptoms of long COVID and they did not file a workers’ compensation claim when they were originally exposed to COVID-19, they may have a very difficult time complying with Nevada’s statute of limitations. A workers’ compensation program in a state like South Carolina is unlikely to provide coverage for long COVID because the state excludes coverage for injuries caused by contagious diseases, unless the claimant’s occupation placed them at a greater risk of exposure. S.C. Code Ann. Sec. 42-11-10.

In contrast, New York’s workers’ compensation program allows claims to be filed within 2 years of the date of the injury. N.Y. Workers’ Comp Law Sec. 28. The state’s program guidance specifies that a new claim for long COVID can be opened even in the absence of an original claim for COVID-19 if it is filed within 2 years of the initial exposure. Similarly, California’s workers’ compensation program allows claims to be filed within 1 year of the injury. Cal. Lab. Code Sec. 5405. A report recently released by the Workers’ Compensation Insurance Rating Bureau of California (WCIRB) in March 2022 found that roughly 11 percent of workers’ compensation claims involving mild COVID-19 infections resulted in treatment for long COVID over four months following the initial COVID-19 infection. A concerning 36 percent of severe COVID-19 cases and 40 percent of critical COVID-19 cases resulted in continued medical claims for the treatment of long COVID symptoms.

Most states require workers’ compensation claims to be filed within 6 months, 1 year, or 2 years of the date of the injury. However, while some states will allow claims to be filed for several months or years following the workplace injury, claimants must still establish that the injury arose from their employment. Due to the highly infectious nature of COVID-19, it will be difficult for a claimant to secure eligibility for these benefits as more time passes between when they were initially exposed to COVID-19 and when they filed their claim. However, workers’ compensation programs typically have a process for appealing adverse benefit determinations. If you file a workers’ compensation claim and it is denied, be sure to consult with an attorney to explore your options for appealing the decision. Individuals who have been affected by COVID-19 may be eligible for pro bono legal assistance through our Pandemic Legal Assistance Network (PLAN). If you are unable to successfully obtain workers’ compensation benefits, you may still be eligible for other benefits. Check out our COVID-19 and Disability Benefits page for more information.