Revised OSHA Recordkeeping Requirements for COVID-19

OSHA has announced revised COVID-19 enforcement polices as states reopen their economies and employees return to work. OSHA reminds employers they must make reasonable efforts to determine whether a COVID-19 case is work related. Click here to review OSHA’s COVID-19 workplace safety standards and guidelines.

When determining whether the employer made a reasonable work-relatedness conclusion, OSHA will consider if the employer investigated each case adequately. Suggested information that an employer should obtain, and document, are:

  • How the employee believes the illness was contracted;
  • Discussion regarding the employee’s work and out-of-work activities that may have led to the illness while respecting their privacy;
  • Review of the employee’s work environment for potential COVID-19 exposure; and
  • If the employer learns of additional information later, that information should be taken into account as well.

After completing a reasonable and good faith inquiry as described above, if the employer cannot determine whether it is more likely than not that workplace exposure played a causal role to COVID-19 illness contraction, the employer does not need to record the illness for OSHA. The investigation documentation should be maintained to demonstrate compliance with OSHA’s recordkeeping guidance.

Recording a COVID-19 case does not automatically mean the employer has violated any OSHA standard.

NCCI Presumptions Tracker

Below are the latest updates from NCCI regarding state presumptions:

Illinois: (Past by Both Chambers on 5.22.20) HB 2455 In Part, Provides That There is a Rebuttable Presumption That an Employee’s Contraction of COVID-19 Arises Out of and in the Course of the Employee’s First Responder or Frontline Worker Employment and That the Injury or Occupational Disease Shall Be Rebuttably Presumed to Be Causally Connected to the Hazards or Exposures of the Employee’s First Responder or Frontline Worker Employment

Massachusetts: (In Joint Committee) HB 4739 Creates a Presumption of Relatedness for Essential Workers Suffering From COVID-19

Michigan: (In Senate Committee) SB 928 Relates to Infectious Disease Presumption for Essential Employees During a Declared Emergency

Ohio: (Introduced the Below)

HB 667 Makes COVID-19 Contracted by a Corrections Officer an Occupational Disease   Under the Workers Compensation Law

HB 668 Makes Coronavirus Contracted by a Peace Officer, Firefighter, or     Emergency Medical Worker an Occupational Disease Under the Workers Compensation Law

As a reminder, NCCI provides regular updates regarding presumption activity.  To access the tracker, click here.

Stay Safe,

Team Libertate


Workers’ Compensation Super Bowl

The National Council of Compensation Insurnce (“NCCI”) hosts their Annual Issues Symposium this afternoon on a shortened and virtual basis.  There is no other conference that influences what happens with workers’ compensation reserving and pricing then this one.

All major carriers and their respective mathematical prophets will be on the line to measure profitability and the components thereof for the last year and historic.  Even more importantly this year, the prediction of go-forward profitability and pricing guidance/trend.

Click to access II_AIS2020-Agenda.pdf

Mr. Donnell starts off at 1:00, State of the Line at 1:15 and Bob Hartwig does a COVID presentation 2-3.  Very much condensed than usual and for the first time that I know of… its free!

We will be summarizing our interpretations of these presentations later in the day but please check out if you have the time.  Hartwig, especially, is a tremendous speaker –

The links below to join…

Plan to join us for NCCI’s Annual Issues Symposium—AIS Virtual<>, May 12, 2020, 1:00 p.m. ET.

AIS Virtual is the premier workers compensation event offering actionable intelligence around the industry’s most relevant issues.

These helpful tips will get you ready:


  • For optimal viewing, use Chrome or Firefox and log in early to test your system’s livestreaming capability.


  • Log in will be available 15 minutes prior to our start time, and you’ll be able to enjoy our AIS Virtual preshow content as we count down to our 1:00 p.m. ET kickoff.


Following the main program, view our interactive Meet the Experts session, and access additional insights via our AIS Virtual Highlights Report on

For more information, and the full AIS Virtual agenda<>, visit<>.

California COVID Call to Cost Billions for Workers’ Compensation System

As expected, the largest workers’ compensation market in the country has rendered the opinion that it is presumed that anyone that is employed outside of their house has contracted the virus at work.  Prior to this order or COVID for that matter the total cost of loss in the California system was predicted to be $18.1 B.  The median risk load as a result if you include “First Responders” is $11.2 B, or 61%.  If you exclude “First Responders”, the additional cost expected is $5.2 B, or a risk load or 28%.

It will be interesting how insurance carriers and those on large deductibles react to this.

FOR IMMEDIATE RELEASE: Contact: Governor’s Press Office
Wednesday, May 6, 2020 (916) 445-4571

Governor Newsom Announces Workers’ Compensation Benefits for Workers who Contract COVID-19 During Stay at Home Order

Benefit will be available for diagnosed workers working outside their homes


Presumption will be workers contracted the virus at work; employers will have chance to rebut


Governor also signed executive order waiving penalties on property taxes for residents and small businesses experiencing economic hardship based on COVID-19; order also extends deadline for filing property tax statements


SACRAMENTO – As California prepares to enter Stage 2 of the gradual reopening of the state this Friday, Governor Gavin Newsom today announced that workers who contract COVID-19 while on the job may be eligible to receive workers’ compensation. The Governor signed an executive order that creates a time-limited rebuttable presumption for accessing workers’ compensation benefits applicable to Californians who must work outside of their homes during the stay at home order.


“We are removing a burden for workers on the front lines, who risk their own health and safety to deliver critical services to our fellow Californians, so that they can access benefits, and be able to focus on their recovery,” said Governor Newsom. “Workers’ compensation is a critical piece to reopening the state and it will help workers get the care they need to get healthy, and in turn, protect public health.”


Those eligible will have the rebuttable presumption if they tested positive for COVID-19 or were diagnosed with COVID-19 and confirmed by a positive test within 14 days of performing a labor or service at a place of work after the stay at home order was issued on March 19, 2020. The presumption will stay in place for 60 days after issuance of the executive order.


The Governor also signed an executive order that waives penalties for property taxes paid after April 10 for taxpayers who demonstrate they have experienced financial hardship due to the COVID-19 pandemic through May 6, 2021. This will apply to residential properties and small businesses. Additionally, the executive order will extend the deadline for certain businesses to file Business Personal Property Statements from tomorrow to May 31, 2020, to avoid penalties.


“The COVID-19 pandemic has impacted the lives and livelihoods of many, and as we look toward opening our local communities and economies, we want to make sure that those that have been most impacted have the ability to get back on their feet,” said Governor Newsom.


Since declaring a state of emergency due to COVID-19 on March 4, 2020, Governor Newsom has taken several actions to benefit workers on the front lines, includingpaid sick leave benefits for food sector workers that are subject to a quarantine or isolation order; critical child support services for essential workers and vulnerable populations; additional weekly unemployment benefits; and needed assistance in the form of loans for small businesses and job opportunities in critical industries for workers that have been displaced by the pandemic.


The NCCI Speaks to the Impact of COVID19 on Workers’ Compensation

Following suit with the research brief from WCIRB. Click here to access.

…done last week by the Workers’ Compensation Insurance Rating Bureau of California (“WCIRB”) on the impact of COVID19 on the California Workers’ Compensation system, the National Council of Compensation Insurance (“NCCI”) came out yesterday with the same for the 38 States that it tracks for rule and rate-making purposes. Note the numbers below do not include half the country’s volume of workers’ compensation premiums when it is considered States like California (25% on its own), New York and Ohio are not included in the below data.

Key findings of the NCCI on frequency rates:

  • % of ee’s that will contract COVID 19 on the job – <10% – 81%
    • it should be noted that the issue of “Presumption of Coverage” related to different types of occupations is the driver of the huge range in frequency – all States are presuming “First Responders” (1,176,110 workers), others to include Healthcare Workers and First Responders (9,666,420 workers) and still others such as Illinois that presumes any worker that is client facing has occupational exposure to the disease (86,351,950 total workers in the 38 States considered)
  • Infection rate is 5-50% regardless of class of worker above
  • Range of Impact of CoVid losses on overall expected losses by category of worker:
    • First Responders – PreCoVid expected losses of $1.1B with potential impact of $.1B – $1.9B… 10%-170% range
    • First Responders and Healthcare Workers – Pre CoVid losses of $3B  with potential impact of $1B – $16.2B…. 33% – 550% range
    • All Workers – PreCovid losses of $32.1B with potential impact of $2.78B – $81.5B… 8 – 254% range
    • Hospitalization rate after infection range is 1 – 31%
    • Critical care rate of 5 – 27%
    • Duration of care for mild symptoms of 2 weeks and 3 – 6 for moderate or critical cases
    • Cost per claim type:
      • Mild $1,000
      • Moderate-Severe $25,500
      • Severe $59,000
    • Impact by infection and compensability rates
      • 1% occupationally impacted, cost of loss goes up 8%
      • 5% = 42%
      • 10% = 85% – which at present is NCCI’s selection
    • Fatality rate for those infected with the virus is .5% across all classes of employees – Average impact $146,980 in death benefits (does not include medical)

My summation of what the NCCI and WCIRB are projecting is as followed:

  • The huge range in expected costs is going to be understood on a State by State basis with the issue of presumption of contraction based on occupational duties being the biggest driver
  • As each State has unique payouts for disability and death, the prediction of cost and risk load for pricing needs to be State by State
  • The healthcare segment is providing the most unpredictability – add a risk load, park the business elsewhere or stay out of the segment for now – too unpredictable
  • PEO’s can be a very important partner to insurance carriers by allowing them to understand performance data fastest due to their management of payroll
  • The smartest people I know do not know what to predict but this is a start – we probably will not have enough real data to narrow this range of expectations for months

Stay safe and we will get through this – but with our eyes open.

Why Knowing Who is Impacted by CoVid is so Important –

Foremost, I hope that  everyone is safe and sound.

Now for the bummer…

There will three outcomes from Co-Vid19 from a comp stand-point:

  •  Death (after “x” days being treated assumedly
  • Isolation (7 days of lost time will trip indemnity benefits)
  • Permanent partial disability due to lack of lung capacity, mental anguish or?  (projections completely unknown)

Being freakishly in tune with those clients that have potential claimants has never been more important.  Knowing those clients that are health care workers as well as public-facing as well. 

We will all get through this (without lawyers to litigate against us)

…an article out of the globe to illuminate potential scenarios —

Surviving ventilators, only to find lives diminished

Amid widespread use for coronavirus, breathing machines’ long-term effects on patients raise concern

Rob Rainer couldn't return to his work as a lawyer after being on a ventilator for a month due to a severe lung infection.
Rob Rainer couldn’t return to his work as a lawyer after being on a ventilator for a month due to a severe lung infection.JIM DAVIS/GLOBE STAFF

Two months after leaving the intensive care unit, Rob Rainer returned to his law practice in Revere, eager to resume his old life after surviving a severe lung infection that tethered him to a breathing machine for a month.

But as he sat down at his desk, the former hard-driving multitasker found he couldn’t stay on track with even one task. Phone conversations left him overwhelmed. He was baffled by a computer program he himself had developed.

Today, five years later, Rainer’s life is very different — his law practice shuttered, his two houses sold. At 58, he lives modestly with his wife in a small condo in Hudson, N.H.

And like Rainer, many will never be the same.

The widespread use of ventilators to save COVID-19 patients has sparked layers of controversy. Hospitals throughout the country don’t have enough breathing machines to meet the predicted demand. Proposals on how to ration them have been called discriminatory. And then, many COVID-19 patients die despite the ventilators; a new study of New York patients found that, as of April 4, a quarter of COVID-19 patients requiring mechanical ventilation had died, while 72 percent were still in the hospital and only 3 percent had been discharged alive.

Now, a new discussion is emerging: the fate of those who survive the ventilator, but awaken to find their brains and bodies altered.

Dr. Daniela J. Lamas, a critical care physician at Brigham and Women’s Hospital, once considered her job complete, and successful, when a patient survived an intensive care stay. But over the years she learned more about what happens to patients after they leave her care. Just because someone makes it through, she said, “does not mean they will be OK to reenter the world.”

Ventilators force air, sometimes with added oxygen, into a patient’s airways, essentially breathing for them so their lungs have a chance to rest and recover. Patients must be heavily sedated so they won’t feel the tube down their throats or fight the machine’s rhythm. They are typically immobile for long periods of time, leading to muscle wasting.

Although no one knows how COVID-19 patients in particular will fare over time, patients using ventilators for other illnesses typically experience long-term consequences. The prolonged immobility leaves many so feeble they can’t even sit up, and muscle weakness can persist even two years later.

Many had frightening experiences in the ICU — or imagined them while delirious — leading to post-traumatic stress disorder. Many, like Rainer, find they can’t think as clearly as before. And as they realize how much they’ve lost, patients often suffer from anxiety and depression.

Together, these physical, psychological, and cognitive changes are known as post-intensive care syndrome, a term coined in 2012. Since then, about 25 or 30 hospitals have set up clinics to help patients understand and cope with the aftermath of an ICU stay. Lamas’s “After the ICU” clinicat the Brigham is the only one in the Boston area.

Here and elsewhere, most patients are simply discharged to fend for themselves, cared for by primary care doctors who may not have full knowledge of what they’ve been through.

“My worry is that patients survive and they’re just let free in the world, with no explanation of what happened to them,” Lamas said.

Emerging evidence suggests that ventilators may not always be effective for COVID-19 patients, and that other less-invasive ways of assisting breathing could work better. If these findings are borne out, and fewer COVID-19 patients end up on ventilators, that will be good news for them — because in every other respect, things are stacked against them.

COVID-19 patients tend to require an exceptionally long time on the ventilator — weeks instead of days — leading to more damage and slower recovery. The steps doctors take to mitigate harm to ICU patients, such as frequent awakenings and physical therapy, can’t happen as infection-control efforts limit the number of staff going in and out of the unit.

And the loved ones who comfort and orient the patient have to stay away, too.

Jon Graham was on a ventilator for nine days. He was photographed with his wife Tracy on April 17 at their home in Clinton.
Jon Graham was on a ventilator for nine days. He was photographed with his wife Tracy on April 17 at their home in Clinton.CRAIG F. WALKER/GLOBE STAFF/THE BOSTON GLOBE

When Jon Graham, who contracted COVID-19 in early March, awoke from nine days on the ventilator, his wife of 18 years was not at his side. He couldn’t understand where he was or what had happened to him.

Graham, a 62-year-old graphic designer, kept pulling out his IVs and the tube providing oxygen. The nurses at the University of Massachusetts Memorial Medical Center had to tie him down by the wrists.

“I’m in a room with alarms on it, doors locked, no human contact, nurses with hazmat suits looking in the little window,” he recalled two weeks later. “You’re really isolated by yourself. … It was awful, awful, awful.”

After a couple of days his mind cleared and the restraints were removed. But he realized he was too weak to even walk to the bathroom.

And while he seemed to know what was going on, he was also prone to delusions and paranoia, as often happens after prolonged sedation. He thought the doctors and his wife, Tracy, were plotting to keep him from coming home. He became convinced his hospital roommate had stolen a gift from a friend.

Even after Tracy confirmed that the friend never sent a gift, Graham said he’s not sure he believes it. The delusions seem so real, they are experienced as memories.

Graham returned home April 13. “I’m feeling a little bit better every day,” he said in an interview three days later. “At least I can stand up and walk around a little bit.”

His wife was surprised when Graham blew his top over an Internet issue. “Jon never gets angry,” she said. And he’s not reading like he used to, feeling too weary for the mental exertion.

Though grateful for the care he received at UMass and thrilled to be home in Clinton with his wife and their 7-year-old twins, he knows he’s got a long recovery ahead.

“I don’t feel confused or anything, but I definitely don’t feel like my normal self,” he said.

The doctor who took care of him at UMass, Adarsha Bajracharya, was optimistic that mentally Graham could return “near to baseline.” Graham hopes to go back to work eventually.

It’s a goal many ventilator survivors don’t achieve.

A ventilator at Boston Medical Center.
A ventilator at Boston Medical Center.ERIN CLARK/GLOBE STAFF

One study of 922 survivors of acute respiratory distress syndrome, the condition that typically leads to ventilator use, found that nearly half were jobless a year after recovery.

Dr. Brad Butcher, director of the Critical Illness Recovery Center at the University of Pittsburgh Medical Center, said the focus on unemployment caused by pandemic-related shutdowns misses another key aspect: Many COVID-19 survivors will be unable to return to work for some time, if ever.

“This is going to have a profound effect on people’s lives and the economy,” he said.

According to the most recent data, about half the 4.8 million people who survive a stay in the ICU develop some aspect of post-intensive care syndrome, said Tammy Eaton, a nurse practitioner who cofounded the Critical Illness Recovery Center with Butcher.

“That’s going to change pretty drastically with COVID-19,” as thousands of patients emerge from long, lonely ICU stays, Eaton said.

Only 30 percent to 40 percent of patients who survived a ventilator say they feel like they’re back to normal after three to six months, Butcher said.

Ventilator use affects thinking ability in ways that are not fully understood, but which may result from sedating medications or from loss of oxygen to the brain.

The cognitive effects can be hard to detect at first, especially in high-functioning, high-IQ people, said Dr. Carla Sevin, director of the ICU Recovery Center at Vanderbilt University Medical Center.

Sevin recalled having “a lovely conversation” with a man who seemed to be doing well after an ICU stay. But when a psychologist gave him a basic mental status exam — asking such questions as what year it is, who the president is — she was shocked to see that the man did not know the answers. “His wife was equally shocked,” Sevin said.

When these seemingly recovered patients return to work, they often end up having their duties reduced or getting fired, she said.

Stacey Salomon, a social worker in the medical intensive care unit at the Brigham, said even patients who don’t return to their previous lives “sometimes get back to a different place,” though it’s not always a bad one.

Having to rely on family members can strengthen family bonds, she said, and the struggle to get better often engenders compassion. “They’re never quite the same, but there can be a real sense of growth and they often want to give back to others,” she said.

Rainer, the former lawyer who couldn’t resume his work, can attest to that. About eight months after his ICU stay, he got connected with Lamas at the Brigham, and after reviewing his treatment with her, was finally able to make sense of his experiences. An MRI revealed damage to the parts of his brain involved in decision-making and judgment. “Knowing there was a physical reason for the difficulties I was having was helpful,” he said.

He ended up designing the website for Lamas’s “After the ICU” clinic. Today he teaches a business course for an online university and is working with his wife on starting a nonprofit. But he’s a high-powered lawyer no more. He sometimes nods off at 4 in the afternoon and sleeps through to the next day.

Through it all, Rainer has discovered a “weird side effect” of his ICU experience — happiness.

“I’m much happier than I used to be,” he said. “I laugh and I joke around and I don’t take things as seriously as I used to. I look forward to each day, even though I’m not going to get much done.”

Regulators and Lawmakers Introducing Workers’ Comp to COVID-19

By Jim Sams, April 20, 2020

Sympathetic state lawmakers and regulators in states both red and blue promise to make COVID-19 a major cost driver for workers’ compensation insurers.

The governors of Kentucky, Arkansas, North Dakota and Florida and state regulators in Illinois, Washington, Michigan and Missouri have issued executive orders or amended rules to expand eligibility for workers’ compensation.

Most of those decrees ease the path for benefits only for healthcare workers and first responders, but an emergency order by the Illinois Workers’ Compensation Commission creates a presumption that work is the cause of COVID-19 if contracted by any “frontline worker” identified in Gov. J.B. Pritzker’s March 20 stay-at-home order. That includes workers at grocery stores, laundries, banks and hardware stores, among other businesses.

Kentucky Gov. Beshear issued a similarly broad executive order that created a COVID-19 presumption for workers in grocery stores, child-care centers, domestic violence shelters and rape crisis centers, in addition to first responders and healthcare workers.

In the meantime state legislators are also pushing to expand benefits for COVID-19. Earlier this month, Alaska Gov. Mike Dunleavy (R), Wisconsin Gov. Tony Evers (D) and Minnesota Gov. Tim Walz (D) signed into law bills that create a COVID-19 presumptions for first responders and some healthcare workers.

Bills to create presumptions for COVID-19 have been introduced in the New York, New Jersey, Pennsylvania, Ohio and Utah state legislatures.


Philadelphia defense attorney Cliff Goldstein said he saw the avalanche of presumption bills coming as soon as heard the first reports of the disease spreading into the United States.

“I don’t think there’s any way to stop that steamroller,” he said.

Data from the California Division of Workers’ Compensation bears him out. As of Thursday, 1,527 claims coded for COVID-19 on claims notices had been filed, according to agency spokeswoman Erika Monterroza.

Goldstein is not the only defense attorney predicting a flood of COVID claims.

“There will likely be many workman compensation claims because of the ease of filing, there is no requirement to prove negligence, and for many people their greatest contact with others, and hence the greatest chance of contracting the virus, is at work,” David Boies, managing partner of Boies Schiller Flexner LLP in New York, told Bloomberg News.

Goldstein said presumption legislation promises to be a boon for claimants’ attorneys, who will take a percentage of any permanent disability benefits awarded.

“You are just dangling meat in front of hungry lions,” he said.

Goldstein said his office — Chartwell Law in Valley Forge — has already received a handful of claims, some of them death claims. He said employers should resist any kind-hearted urge to quickly approve such claims based on the employee’s job category. Instead, each claim must be individually investigated, he said.

COVID-19 claims that require admission to an intensive care unit will likely run into the six figures for medical costs alone, he said. What’s more, employers will be taking full responsibility for whatever complications arise from a coronavirus infection far into the future.

Goldstein said Congress passed a pair of relief bills in March that should make it easier for employers to delay acceptance of a claim. The legislation requires employers with fewer than 500 employees to grant up to 80 hours of sick leave to workers sickened by the new coronavirus, which will be reimbursed with tax credits. Gov. Gavin Newsom issued an executive order Thursday that requires the same benefit from employers with more than 500 workers.

For workers who lose their jobs because of coronavirus, the federal emergency law also allows up to 16 weeks of unemployment insurance benefits at rates ranging from $875 to $1,500 per week, depending on the state, Goldstein said.

Vulnerable Occupations

Claimants’ attorney Julius Young in Oakland, Calif. said those benefits won’t make workers whole. Usually workers lose their health insurance if they lose their job, which makes workers’ comp a vital benefit for employees who were made sick because of their exposure to the public while at work. Also, some workers may be permanently disabled by COVID-19.

He said presumption bills make sense for workers who can’t avoid constant contact with the public.

“A lot of these people in vulnerable occupations shouldn’t have to go through this roulette-like maze wondering whether they are going to be covered,” Young said.

Young said the federal benefits will help in the short-term. He said state regulators should start thinking about whether and how any federal benefits paid can be offset from workers’ compensation awards.

Medical research indicates that there is a real possibility of permanent disability from COVID-19.

According to Science Magazine, the lack of oxygen and widespread inflammation caused by COVID-19 can damage kidneys, liver, heart, brain and other organs. Studies show that severe pneumonia caused by other diseases sometimes lead to scarring that causes long-term breathing problems. Pneumonia also increases the risk of future illnesses, including heart attack, stroke and kidney disease.

In one study of 138 patients hospitalized in Wuhan, China due to pneumonia from COVID-19, 20 percent suffered acute respiratory distress syndrome.

A separate study published by the New England Journal of Medicine in 2011 Regulators and Lawmakers Introducing Workers’ Comp to COVID-19found that of 109 survivors of ARDS, 51% suffered physician-diagnosed depression, anxiety or both. Perhaps more relevant to workers’ comp, that study found that just 77 percent of the 83 patients who survived throughout the study period had returned to work five years after being treated. The study found that only 39% of patients were able to walk the distance expected for their age group in six minutes five years later, suggesting a high degree of physical impairment.

As of yet, none of the major workers’ compensation rating organizations has released any projections on the potential impact of COVID-19 on workers’ comp loss costs.

The National Council of Compensation hopes to release next week an analysis of potential claim costs under a variety of scenarios, said Executive Director Jeff Eddinger. For example, one scenario project costs if a large percentage of workers who contract COVID-19 file claims and 100 percent are found to be compensable. He said the analysis will make projections for a variety of infection and claim-acceptance rates.

Eddinger said NCCI does not yet have any data on how many claims have been filed. He said insurers don’t report their losses until six months after the policy period expires. But he said there is some data available. For example, the Centers for Disease Control and Prevention reported that between 10 percent to 20 percent of COVID-19 cases were healthcare workers.

The California Workers’ Compensation is working on similar projections, said President Alex Swedlow.


Want to learn more about how COVID-19 affects your company? Give us a call at 305-495-5173, or email us at