Melanie Gambardella continued to care for domestic patients throughout the COVID pandemic, even if she did not have adequate personal protective equipment early on and never knew exactly how exposed the person was to the rapidly spreading virus.
When a co-sister tested positive for COVID, her employer, VNA of Care New England, took the position that her colleague in the community had contracted the virus because her husband also had symptoms. The company’s stance even came after the nurse learned she had treated two patients who had treated positively this week, said Gambardella, union representative for the Federation of Visiting Nurses and Health Professionals, Local 5022, AFT.
Fearing retaliation, the nurse decided not to question the company on whether or not she should receive employee compensation benefits. Instead, she used the vacation time to cover her absence.
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“For me it is an occupational hazard. You take care of people who are sick. They don’t know how much a person has been exposed, ”said Gambardella.
“We have continued our services from the start,” she added. “I just want to believe that if I got sick, I would be protected.”
The VNA replied that so far only one person on the staff has been infected by a patient and she has been paid for her absence. A VNA clinician interviewed each employee hiring COVID to assess the claim and understand all of the employee’s interactions.
“If the person on the staff lives with someone with COVID, this is likely who they received it from as they do not wear PPE at home and spend more than 15 minutes in close contact. There isn’t one answer for everyone, it depends on PPE use, family or household positivity, “said Kathy Peirce, President and CEO of VNA of Care New England, in an email.
The law in Rhode Island requires employers to take out employee compensation insurance that pays medical bills and provides benefits to employees who are injured in the workplace or have a disease caused by their work.
However, during the pandemic, employers and insurers took very different approaches than employees who apply for employee compensation for sick leave or medical care after completing COVID.
A gesture of goodwill ‘
Beacon Mutual Insurance Co., the dominant government worker compensation insurance company, believed early on that health care workers making COVID-related claims would develop the disease in the workplace. However, other private insurers were not so ready to make such assumptions during the crisis.
“It was a gesture of goodwill. In all fairness we thought it was the right thing to do. We felt it was important to protect our healthcare workers, ”said Brian J. Spero, President and CEO of Beacon.
“We were willing to pay the financial cost, but it wasn’t as costly as we imagined,” said Spero, whose company has made about 650 COVID-related claims.
Workers’ compensation usually does not cover diseases such as the flu that are common in the community. It is difficult to link exposure directly to a workplace. However, the pandemic has turned important jobs – like working as a cashier or driving a bus – into dangerous jobs. Added to this is the potential for death or long-term consequences, although most people recover faster.
“These are difficult cases. The injury must be workplace-related, ”said Robert M. Ferrieri, chairman of the Workers’ Compensation Court, whose court saw such cases late last year when Rhode Island saw its second surge in infections.
“Is it possible to prove the connection? Yes, but it is a difficult hurdle to overcome, ”said Ferrieri.
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For lawyers like Michael A. St. Pierre, who specializes in representing injured workers, this has proven to be a challenge. While Beacon’s policies have eased the path for healthcare workers, private insurers are denying claims for tank attendants, tow truck drivers, and restaurant and grocery store workers, St. Pierre said. Some of his clients have been people who have lost loved ones to the virus and are looking for deaths for spouses.
St. Pierre valued Beacon’s approach and would support policies that were included in the books to help judges take a unified approach to COVID claims.
“That was welcome because COVID was unprecedented,” said St. Pierre, adding, “You have to be fair to all parties.”
A more comprehensive approach is being examined by the Workers’ Compensation Advisory Council, a group of stakeholders that makes recommendations on how to improve the employee compensation system. It has been headed since 1995 by George Nee, President of the AFL-CIO of Rhode Island.
Nee applauded Beacon’s policy, agreeing that a more unified approach to COVID-related claims “deserves serious consideration”. Not for all industries, he said, but certainly for people who work in meeting environments like group homes.
“Getting people through this type of aggravation after contracting this disease is incomprehensible,” Nee said.
A varied approach to claims
States have taken different approaches to employee compensation cases during the pandemic. Many health care professionals and first aiders extended COVID insurance coverage that is generally covered by On-duty benefits in Rhode Island. Under these guidelines, the award of COVID is assumed to be work-related, which means that the employer is required to prove otherwise.
According to the National Conference of State Legislatures, 17 states and Puerto Rico have accepted COVID-19 as a work-related illness. Nine others have passed laws creating a presumption of coverage for different types of workers.
In Rhode Island, MP for the state of Anastasia Williams passed legislation last month requiring employers in certain occupations in a state of emergency to assume that COVID-19 has arisen in the workplace. This includes licensed healthcare workers who are employed in the healthcare, community, home care, or long-term care setting and who have contact with people with COVID.
Also included are key workers such as firefighters, police officers, law enforcement officers, grocers and transport workers whose employment was deemed necessary for the continued health and safety of the community.
“At this point it is a balanced playing field with this virus. We need to protect those who make sacrifices and, in some cases, have given their lives, ”said Williams, D-Providence.
Chairwoman Williams shared her thoughts at a House Committee on Labor meeting on February 10th.
“These committed employees from all walks of life have literally kept our company running over the past year. They risked the health and safety of themselves and their families so the rest of us were protected and supported during the pandemic. … It is only fair and right that they should be allowed to receive workers’ compensation if the worst should happen and they become infected, which has serious economic consequences for themselves and their families, ”she said.
Pushback from companies
The move has been pushed back by the business community, including the New England Convenience Store & Energy Marketers Association, which represents nearly 500 convenience stores in Ocean State.
“It is likely that we can all agree that companies or individuals who choose not to comply with required health and safety requirements should be held accountable. However, it is not appropriate to find all companies guilty simply for providing essential services. If they pass, insurers have no choice but to increase premiums and pass these additional costs on to employers. The timing for these additional costs couldn’t come at a worse time as many companies are struggling to stay open and keep staff, ”wrote Brian P. Moran, the association’s director of government affairs, to state lawmakers.
The American Property Casualty Insurance Association, the premier national trade association for home, auto, and business insurers, said the legislation could improve the state’s compensation system.
House Bill 5264 is a very sweeping piece of legislation that could cost Rhode Island millions of dollars in new costs and skew the basic purpose of employee compensation – by making employers liable for COVID-19 and other non-work related cases. This wrongly shifts the cost of a pandemic response to employers and could jeopardize the stability of the employee compensation system, ”Francis C. O’Brien, vice president of the association, told the committee.
Beacon also questioned the constitutionality of the legislation in a written statement before the committee.
“If passed, this legislation will jeopardize the viability of the employee compensation system, have a downstream impact on all Rhode Island employers, and hinder our state’s economic recovery. Our employee compensation system is currently handling this crisis skillfully. We ask you not to bring the same system to its knees, ”said the company.
However, the proposal was supported by the United Nurses & Allied Professionals and the Rhode Island Federation of Teachers and Health Professionals. They argued the need to protect nurses like Gambardella and her colleagues, as well as other health care workers from organizations that are self-insured and do not assume that COVID has been contracted in the workplace.
Brooke Garland, a nurse at VNA Home & Hospice, benefited from Beacon’s guidelines in December when she received COVID from a home patient. She missed two and a half weeks of employment after becoming symptomatic and “very ill” with the virus.
While she and other nurses had to use their paid time off during the crisis for “fears” that didn’t turn out to be COVID, Garland described her experience of receiving workers’ compensation through Beacon as “seamless”.
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