WAGE CONTINUATION DURING THE HEALTH CRISIS
Assuming an employer is able to continue paying their employees despite a government-ordered shutdown of their business, there would, generally speaking, be no appreciable change to any employer’s workers compensation rights nor any obligation to initiate any indemnity payments. This, again, assumes that all salaries will be continued, whether those salaries were for employees who were working at their full-time jobs doing their full-time duties or for workers who were previously injured and were being accommodated with light or otherwise modified duties. As long as those previously injured workers were making at least 90% of their previous wages, they would not be entitled to supplemental earnings benefits (SEB). Assuming that those workers fall under the same wage retention policy an employer has instituted in the short term, those individuals would not be entitled to any additional indemnity payments. The continuation of payments would probably be viewed as wages in lieu of compensation and would make unnecessary any separate SEB indemnity. The obligation to furnish reasonable and necessary medical treatment, however, would obviously remain in force.
Should an employer not be able to indefinitely extend wage retention, would employees, either previously injured or not, be entitled to workers’ compensation coverage?
Absent a compensable injury or occupational disease issues (which we will cover subsequently), we do not believe that an employer would owe workers’ compensation benefits to individual workers not stricken with the virus and unable to attend work and earn wages as a result of this government ordered shutdown. An interruption or reduction in an employee’s salary or wages, by itself, does not constitute a compensable injury, and, therefore, does not trigger an employers’ obligation to pay compensation benefits. We searched the case law, particularly with respect to the unusual situation stemming from Hurricane Katrina, and we found no applicable cases dealing with that time period nor any other major disaster or public emergency.
An employee’s right to workers compensation benefits is contingent upon that employee’s suffering a compensable injury. Mainly, the employee must have suffered an injury (or contracted an occupational disease) that: (1) arose out of the employment; and (2) occurred in the course of the employment. The Louisiana Workers’ Compensation Act defines an “injury” as “only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom. The term does not include any other form of disease or derangement, however caused or contracted.” Thus, without a compensable injury or occurrence of occupational disease, an employer owes no workers compensation benefits to the employee.
With particular reference to the previously injured employees now on light duty, the SEB section of the Workers’ Compensation Act, found at La. R.S. 23:1221 (3), states that “for injury resulting in the employee’s inability to earn wages equal to 90% or more of wages at time of injury,” supplemental earnings benefits at the two-thirds level will be owed. The wording of the statute demands that the inability to earn wages at the 90% level originate as a result of the accident. In the current situation, the inability to earn wages at the 90% level is a result of business closures and not the consequence of the injury. There undoubtably could be some attorneys who would argue that the injured worker was not able to do his full duties at the time of the closure and since an employer could not, due to the shutdown, provide employment at the 90% level, then those employees would be entitled to SEB. There are several arguments on both sides, but a counter to that argument would be that all employees, due to the government-imposed shutdown, were in the same boat of being restricted to unemployment benefits and providing SEB benefits to some employees would provide them with greater rights than other employees. All of this, of course, is completely uncharted waters as employers, employees and the court systems have never dealt with anything like this before.
Essentially, we believe an employer could reasonably take the position that the employer does not owe compensation merely because the employees are unable to obtain a certain threshold of their pre-injury wages due solely to the COVID-19 pandemic or government mandated shutdown. An employer could take the position that instead, the employee’s inability to earn wages must be causally related to the compensable injury that they suffered.
Indeed, the entire purpose of supplemental earnings benefits “is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident.” Here, the inability to earn a certain threshold of wages is not due to an injury (prior to the shutdown, these light duty workers were being paid full wages) but rather due to the pandemic and government restrictions. Thus, a reasonable employer position would be that the lost wage-earning capacity must be due to the accident instead of some fortuitous event that does not qualify as in “accident” under Louisiana Compensation Act.
The statute covering occupational disease, La. R.S. 1031.1(B), defines occupational disease as follows: “An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process or employment in which the employee is exposed to such disease.”
Accordingly, there will be some employees in the City of New Orleans and the State of Louisiana who may be covered under workers’ compensation if the risks of their employment are unique to and greater than the risks to the general population. Physicians, nurses, others in the medical field as well as EMS workers and first responders could very well be covered should they contract the virus due to a direct exposure that would have otherwise not occurred had they not had the enhanced and unique risk which was characteristic of their work duties. An EMS worker transporting an infected patient would likely be covered under occupational disease. For those workers whom contract the disease as a result of simply being in contact with the general population would probably not be covered.
We hope the foregoing has provided you with some preliminary insight as to how to deal with these extraordinary times, and we can only state that this challenging situation will more than likely raise some issues which have never been dealt with before and for which the courts have not provided previous answers. Workers’ compensation law is chock full of gray areas, and this appears to be as gray as it gets. As we get deeper into the spread of this virus, please know that we remain ready to assist you in any way you may need us.
For more information, please contact attorney Wayne Fontana in the New Orleans office at [email protected].