Michigan has taken steps to mitigate the financial risks that healthcare workers and first responders face by continuing to serve the rest of us. Under this revised Emergency Rule, issued on March 30 by the Department of Labor and Economic Opportunity, "first response employees" diagnosed with COVID-19 by test or by a physician are presumptively eligible to receive benefits for losses otherwise compensable under the Workers Disability Compensation Act. A denial of such a claim is a violation of the Act and subject to penalties unless the denial is based upon "specific facts" demonstrating that the employee was not exposed to COVID-19 at work.
Who are "first response employees?"
- "First response employees" are not just "first responders." The term includes virtually anyone working with patients in health care, as well as some who do not have direct patient care responsibilities. To start, it includes anyone "working in" hospitals, emergency services, emergency medical services, ambulance operations, advance mobile emergency care services, county medical care facilities, nursing homes, homes for the aged, hospices, home health agency or visiting nurse association. Note that coverage under the Emergency Rule in this respect does not necessarily turn on the specific work of the employee; it turns on who the employer is. Although the Rule is not entirely clear, a person "working in" emergency services may well be limited to those individuals actually providing such services to patients; but a person "working in" a hospital could include a file clerk, a lab tech, and a custodian – not just front-line clinicians dealing directly with patients. The rebuttable nature of the presumption that a COVID-19 infection resulted from workplace exposure is the only leash on this broad coverage.
- "First response employees" also include most clinicians regardless of their actual work. Physicians, physician assistants, nurses, EMTs, paramedics, and respiratory therapists all come within the Emergency Rule. This could capture clinicians working in settings that have little to do with the current COVID-19 response, or with little or no direct exposure to COVID-19 patients. Again, the rebuttable nature of the presumption that a COVID-19 diagnosis resulted from a workplace exposure is apparently intended to mitigate the breadth of coverage otherwise provided by the Emergency Rule.
- This expanded application and protection afforded by the Emergency Rule also applies to workers we generally think of as "first-responders" – such as police and firefighters. It also includes EMTs, on-call members of a fire department or life support agency, volunteer civil defense workers, members of emergency rescue teams, and state or local corrections officers.
The revised Emergency Rule significantly dials back a previously issued rule. The earlier rule established what appeared to be an absolute presumption in favor of the employee's claim and extended coverage under the rule to every worker of nearly any sort of health care organization or any local, county or state department or agency engaged in law enforcement or other first-response activities. Still, the revised Emergency Rule provides significant benefit to those workers on the front lines of the response to the COVID-19 pandemic.
As with all the other emergency measures adopted in response to the COVID-19 pandemic, the Emergency Rule still leaves several questions unanswered or uncertain. It will take time to see how the agency and courts actually apply the Emergency Rule. However, employers and employees working in the health care and first responder spaces should not lose sight of the need to treat a COVID-19 infection as a reportable event under Michigan's workers' compensation law. Appropriate reports – Forms 100 and 117 – should be filed once you are aware of the diagnosis. Where a diagnosed worker was not engaged in direct patient care or contact, employers will want to work closely with their workers' compensation carrier to garner "specific facts" that essentially foreclose the possibility that the worker was not exposed to the virus at work before opposing the claim for benefits.
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