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LEGAL RIGHTS OF FIRST RESPONDERS AND HEALTH CARE PROVIDERS INFECTED OR OTHERWISE IMPACTED BY COVID-19 VIRUS

Generally a disease like COVID-19 is not covered under Florida Workers’ Compensation law regardless of what kind of work you do. The Florida Workers’ Compensation Act is extremely restrictive with regard to exposure claims, and legal standards related to occupational disease are enormously burdensome; some would argue the standard is unconstitutional. Fortunately, however, First Responders (including firefighters, law enforcement and corrections officers, paramedics and emergency medical technicians) have special statutory protections, specifically contained in Chapter 112, that ease the burden of proving that infection with the COVID-19 virus is a work-related medical condition. Additionally the Florida CFO has issued a directive providing that COVID-19 cases involving First Responders should be presumed contracted on the job. Here is what you need to know about the current legal rights of First Responders and health care providers infected or otherwise impacted by the COVID-19 virus.

1. MEDICAL CARE: Any First Responder or health care worker infected with the COVID-19 virus is legally entitled to full medical care without co-payment or out of pocket expense under the Workers’ Compensation Act. This is not a group health insurance responsibility unless there is a legitimate legal basis for denial of coverage. All reasonable and necessary medical must be provided for both the virus and any secondary condition that may hinder recovery from the illness.
2. PRESCRIPTIONS: Any First Responder or health care worker infected with the COVID-19 virus is legally entitled to all medication necessary to treat the condition, without cost or out of pocket expense, and has the absolute legal right to choose the pharmacy he or she desires to fill needed prescriptions.
3. LOST WAGES: Any First Responder or health care worker infected with the COVID-19 virus should be paid lost wages under the Workers’ Compensation Act and should not be forced to utilize sick, vacation or any type of banked leave time. This lost wage compensation is non-taxable and will continue through the duration of any disability related to the virus or secondary conditions that may result from the virus.
4. PERMANENT IMPAIRMENT BENEFITS: Any First Responder or health care worker infected with the COVID-19 virus may be entitled to the receipt of non-taxable permanent impairment benefits upon returning to work if there is any whole body impairment resulting from the disease.

While this is largely uncharted territory our firm has spent nearly thirty years on the cutting edge of health and safety issues impacting the health of First Responders. We are firmly rooted in the complexities of occupational disease in the First Responder community and the interplay between the multiple legal protections that exist in this area. Every First Responder and health care worker in the State of Florida should operate under the assumption that they will be fully covered, and receive all legal benefits in the event they contract the COVID-19 virus. Our office will remain open throughout this crisis and is here to answer any questions related to these complicated legal issues. As always we are honored with the opportunity to serve you and greatly appreciate your selfless sacrifice to our communities.

COVID 19 Worker’s Comp FAQ’s for First Responders

Workers’ Comp Questions

What does W/C cover when I am exposed to COVID 19 while at work?

The answer to this question may be different depending on whether the First Responder is diagnosed with Covid-19. A confirmed diagnosis of Covid-19 should trigger a Notice of Injury and claim that the condition is work-related. Exposure, without a confirmed diagnosis, is only problematic where the employer is refusing to pay First Responders who are forced to quarantine after being exposed. In these instances (quarantine without diagnosis) Notice of Injury forms should be completed where the employer is forcing the First Responder to utilize bank time to get paid.

Workers’ compensation benefits for Covid-19 claims should include: all required medical care, medication, and payment of lost wages. There may also be entitlement to additional tax-free financial compensation due to potential long-term impact of the disease.

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Can W/C be denied because the time of my exposure was unknown?

The short answer is yes but any denial of coverage should be disputed and litigated if necessary. The CFO issued a directive at the beginning of this pandemic suggesting that Covid-19 cases should be presumed work-related for First Responders but the directive is not binding and each employing agency can deny individual claims based on any number of available defenses. From a public policy perspective there is simply no basis to suggest that these cases should be denied but where that happens First Responders should aggressively pursue relief in order to set the needed precedent and highlight the need for additional legislation to address this crisis.

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What does the Federal family First act cover?

The Families First Coronavirus Response Act (FFCRA), effective April 2 (and expiring December 31, 2020) generally requires employers with fewer than 500 employers to provide up to 12 weeks of paid leave to employees related to Covid-19. Importantly, however, the Act allows employers to exclude “emergency responders.” While the term emergency responders is not defined it is generally assumed that this includes all First Responders. Many agencies in Florida, notwithstanding the potential exclusion, have agreed to provide emergency paid sick leave under the act.

The sick leave provisions are probably the most important issue for Florida First Responders as they provide for 80 hours of paid sick leave for an employee either diagnosed with COVID-19 or quarantined due to exposure. Employers may not require an employee to use other paid leave provided by the employer before using paid sick time under the Act.

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Can I get both WC and the federal act coverage?

The short answer is yes: you can be covered by both the workers’ compensation act and federal legislation. The Families First Coronavirus Response Act provides protections that are supplementary to existing workers’ compensation law. As an example, an employer can provide full pay for the first 80 hours of lost time under FFCRA after which the employee would be entitled to lost wages under the workers’ compensation act. Senate Bill 3607 (Safeguarding America’ First Responders Act of 2020) amends the Public Safety Officers’ Benefits program to include COVID-19 related deaths and disabilities. PSOB benefits also overlap existing workers’ compensation law and provide substantial additional legal protections. It should be noted that the language in this bill provides that COVID-19 (or complications therefrom) suffered by a public safety officer shall be presumed to constitute a personal injury. This presumptive language could be beneficial in the workers’ compensation setting but the bill has not yet passed the House of Representatives. Since FFCRA does not provide for medical care all medical care should be covered under the workers’ compensation act.

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I was sent home by a supervisor. Is that enough to get the benefits of the federal act if I am negative, but exposed to someone who was positive?

The FFCRA does provide for full pay of up to 80 hours for employees forced to quarantine due to potential exposure to somebody who tested positive. Again, the law allows employers to exclude emergency responders but agencies should be pressed to pay First Responders for lost time due to quarantine without utilization of bank time. If the employer is failing to provide the 80 hours of paid leave as required by FFCRA then we are recommending the issue be litigated.

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Notice of Injury Questions

How long do I have to send in my first notice of injury/illness?

Generally, Notices of Injury must be filed within 30 days of the occurrence of a work injury. In cases of occupational disease, the notice requirement is extended to 90 days. There are exceptions to these requirements but First Responders who are either diagnosed or quarantined following an exposure should file a Notice of Injury as soon as possible to protect legal entitlements. If you have delayed filing a Notice of Injury due to confusion, please call the office for further guidance.

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What do I do if they do not let me file a NOI/FROI? Or exposure report?

No employer can legally prohibit an employee from filing a Notice of Injury or exposure report. Any such prohibition might be a violation of F.S. Section 440.205 and other existing whistleblower protections.

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Quarantine Questions

I was mandatory quarantined prior to April 1st by my department and I tested negative? Tested positive? Am I covered under Workers’ Comp?

A positive test is certainly something that should be covered under Florida workers’ compensation in my estimation. A forced quarantine, where testing is negative, is a bit trickier but exposure to a toxic substance can still be a work injury under Florida law and may implicate legal protections.

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I was mandatory quarantined by the department for testing positive for COVID 19 after April 1st. They stated I needed two negative tests prior to being released to full duty after 14 days. However, they came back still positive and denied my W/C claiming there is no proof it was exposed at work and I would need to take my own sick time for more mandatory quarantine until I have two negative tests. Can they do that?

Legally the employer can deny the claim and force you to pursue benefits through the existing administrative process. If you tested positive your condition should be presumed work-related from a public policy perspective and I believe you should fight the denial.

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If I went on vacation out of country or went on a cruise and the department mandates me to be quarantined for 14 days upon my arrival home? Is that covered under W/C?

A quarantine due to potential non work-related exposure would not qualify for legal protections under the workers’ compensation act but FFCRA could be argued.

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I have been quarantined, because someone on my squad tested positive for COVID 19 and because testing results are backed up, it has taken over 10 days to get my negative results back. Is that mandated time covered under W/C?

If you are quarantined due to exposure on the job you should not be required to utilize bank time to receive your normal paycheck. The FFCRA and workers’ compensation act are both potential sources of protection and should be investigated.

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What happens if I test negative but I am quarantine more than 14 days?

From a policy perspective you should be paid for up to 80 hours under the FFCRA and work comp should kick in to pay for anything not covered by the federal legislation.

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Department Policy Questions

Should I ever be made to use my own sick time if a supervisor mandates me to stay home sick?

If a First Responder is required to quarantine, he or she should not have to utilize bank time to receive pay. Both the FFCRA and workers’ compensation provide potential mechanisms for payment of lost wages.

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Can the department mandate that I get tested for the COVID 19 antibodies?

This is a complicated question without a clear answer at this point since there are a number of overlapping concerns and potential legal issues. Generally, I think antibody testing is reasonable although I do understand potential privacy concerns.

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If someone in my family tests positive and I do not, but the department mandates me to quarantine, is that covered under W/C?

Situations where quarantine is required due to exposure off the job will not be subject to work comp protections. There may however be coverage of up to 80 hours paid leave under the FFCRA.

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