Updated April 24, 2020
Following are common coverage questions the Trust has received from members. Every situation has different facts and must be evaluated individually. If you think you might have a claim, please submit it to the League of Minnesota Cities Insurance Trust so we can determine whether coverage applies. Keep in mind, these guidelines only apply to organizations that are covered by the Trust. If you obtain coverage elsewhere, consult with your carrier.
Q1.What is the new state law that provides a presumption for COVID-19 workers’ compensation claims? Which employees are covered by it, and what coverage is provided under the presumption? (Updated April 21, 2020)
Q5. If an employee or emergency response volunteer, including those covered under the COVID-19 presumption (see Question 1), does not actually contract COVID-19, but is only exposed to COVID-19, is there workers’ compensation coverage?
Q1. What is the new state law that provides a presumption for COVID-19 workers’ compensation claims? Which employees are covered by it, and what coverage is provided under the presumption?
A1. For injuries occurring on or after April 8, 2020, the presumption applies to employees and volunteers working in one of these specific occupations:
- Licensed peace officers.
- Nurses or health care workers, correctional officers, or security counselors employed by the state or a political subdivision at a corrections, detention, or secure treatment facility.
- Emergency medical technicians.
- Health care providers, nurses, or assistive employees employed in a health care, home care, or long-term care setting, “with direct COVID-19 patient care or ancillary work in COVID-19 patient units.”
- Workers required to provide child care to first responders and health care workers under previously issued executive orders.
The presumption is set to expire on May 1, 2021. Until then, it provides workers’ compensation benefits for those who contract COVID-19 (see Question 5 below for more information about contracting versus being exposed to COVID-19), and it is only rebuttable if the employer can show the employment “was not a direct cause of the disease.” The COVID-19 diagnosis must be confirmed by a positive laboratory test or, if a laboratory test was not available for the employee, “as diagnosed and documented by the employee’s licensed physician, licensed physician’s assistant, or licensed advanced practical registered nurse, based on the employee’s symptoms.”
If an employee or volunteer works in one of the occupations noted above and contracts COVID-19, the city should file a First Report of Injury and submit it to the Trust. For reporting purposes, it is required by law that all types of employees and volunteers obtain a written copy of the document showing their positive test results and provide a copy to their employer. This does not have to be included with the First Report of Injury.
A2. The date of injury for an individual who has contracted COVID-19 is the date that person was unable to work either 1) due to a diagnosis of COVID-19, or 2) due to symptoms that were later diagnosed as COVID-19. Whichever occurred first is considered the date of injury.
Q3. What if an employee, other than those listed in Answer 1 above, contracts COVID-19? Are they entitled to the COVID-19 presumption?
A3. Other types of employees can still make a claim for an occupational disease or personal injury, even though they are not entitled to the COVID-19 presumption. If an employee contracts COVID-19 and reports it as a work-related exposure, the city should file a First Report of Injury and submit it to the Trust. The Trust will evaluate the claim and determine whether it’s compensable under state law.
Emergency response volunteers and paid on-call emergency volunteers not listed in Answer 1 above are considered employees for purposes of workers’ compensation. They are included in the city’s workers’ compensation coverage, as long as they are registered with and under the direction and control of the city. If these individuals are injured or contract COVID-19, whether it’s while responding to a COVID-19 emergency or not, workers’ compensation would respond. For reporting purposes, it is required by law that all employees and volunteers obtain a written copy of the document showing their positive test results and provide a copy to their employer. This does not have to be included with the First Report of Injury.
Q4. If our city enlists the help of other types of volunteers to assist with a COVID-19 emergency, are they covered if they are injured or contract COVID-19 while working?
A4. Other volunteers — those not considered emergency response volunteers, such as those volunteering for park and recreation programs, Meals on Wheels, and adult friendship programs — that are injured while performing services for the city are protected under the volunteer accident coverage provided to all members of the Trust’s workers’ compensation program. While benefits are more limited, some protection for city volunteers is available on a no-fault basis. The city should file the Volunteer Accident Form and submit it to the Trust.
Q5. If an employee or emergency response volunteer, including those covered under the COVID-19 presumption (see Question 1 above), does not actually contract COVID-19, but is only exposed to COVID-19, is there workers’ compensation coverage?
A5. Workers’ compensation only applies to injuries and diseases that arise out of work. There is no coverage for exposure to a disease under Minnesota’s workers’ compensation law. If an individual is quarantined due to an exposure, workers’ compensation coverage won’t apply.
Under the Governor’s Emergency Executive Order 20-05, financial assistance is available for some people who are required to self-quarantine or isolate because of exposure to COVID-19. According to the Minnesota Department of Employment and Economic Development, a person who works in a position covered by unemployment insurance may be entitled to unemployment compensation if their employer requires they self-quarantine or a health care professional advises they do so, and they are not receiving paid leave equivalent to their normal rate of pay. This would also apply to emergency response volunteers (see Answer 3 above for definition) who are also employed in a covered position.
A6. Non-emergency employees, emergency employees, and emergency response volunteers are eligible for workers’ compensation benefits. All these individuals would be eligible for necessary, reasonable, and related workers’ compensation medical benefits and indemnity benefits (or lost time benefits or wage replacement).
Regarding emergency response volunteers, if they’re unable to work in their normal occupation because they contracted COVID-19 while volunteering for the city, indemnity benefits are calculated as follows: If the volunteer only receives an expense reimbursement from the city, indemnity benefits are based on the greater of their regular employment earnings or an imputed full-time wage for a similar position. If the volunteer receives a wage from the city, benefits are based on the total wage plus the volunteer’s regular employment earnings.
Q7. If a city shuts down a city building due to COVID-19 voluntarily or involuntarily, does the Trust provide coverage for loss of revenue?
A7. “Loss of revenue” coverage is not available when a city building is closed for this reason. This type of coverage only applies when there is the necessary suspension of operations caused by direct physical loss or damage to covered property.
Q8. If a city incurs costs to remediate COVID-19 that’s been detected in a city building, is there any coverage?
A8. This claim is generally not covered. There is coverage for organic pathogen cleanup expenses necessary to prevent the spread of an outbreak, but the organic pathogen needs to be either: 1) A disease for which federal isolation and quarantine is authorized by an executive order; or 2) Defined by the U.S. Department of Health and Human Services as a communicable disease of public health significance. COVID-19 is not currently on either list, but the Trust continues to monitor.
Q9. Is there coverage for expenses related to the proactive sanitation of city buildings or vehicles?
A9. The Trust does not provide reimbursement for these kinds of expenses.
A10. The Trust doesn’t provide event cancellation coverage, but insurance may be available through another insurance provider. This coverage usually needs to be purchased well in advance of the event.
Q11. If a city enlists the help of volunteers to assist with a COVID-19 emergency, are they covered if they get sued?
A11. Volunteers are covered under the city’s liability coverage as long as they are acting on behalf of the city and subject to the city’s direction and control.
A12. The Trust offers extraordinary expense coverage for unforeseeable events that are unanticipated, necessary to protect public health and safety or fulfill legal obligations and not otherwise covered. Amounts advanced must be paid back within five years. There are guidelines, restrictions, and details for this coverage. Please contact us for details.
Q13. Is the city liable if someone contracts COVID-19 while in a city facility or participating in a city program?
A13. It’s possible, but unlikely, given other potential sources of infection associated with the community spread of COVID-19. If the city is not immune from liability, an injured person would need to prove the city’s negligence caused the injury. As a practical matter, it would probably be difficult for the person to prove where he or she contracted the virus. But even if the person can show the virus was contracted in a city facility or while participating in a city program, that does not mean the city is liable. To defend against a negligence claim, that city can show the steps it took to keep facilities safe and prevent the spread of COVID-19. The city should document in writing the actions it has taken. Ultimately, the risk of liability to a city is relatively low if it is following the guidance of state and federal officials.
Q14. If the city gets sued related to the alleged transmission of COVID-19, will LMCIT defend the city and pay damages?
A14. Yes. LMCIT provides coverage for claims resulting from organic pathogens. A virus such as COVID-19 is considered an organic pathogen under the city’s limited contamination liability claim coverage. There is a $3 million annual aggregate (the maximum amount LMCIT will pay out on behalf of the city during the one year policy period). However, LMCIT does exclude bodily injury and personal injury damages arising out of the city’s ownership, operation, or maintenance of medical, nursing home, and licensed daycare facilities.