Working Together Again

The 2021 CLM Workers’ Compensation and Retail, Restaurant & Hospitality Conference is a fully virtual three-day event that kicks off May 12, 2021, comprised of educational sessions that will offer unprecedented knowledge access to leaders in these two industries. The conference’s day-one premier session, “Compensability Now and Claims Handling Post-COVID-19 Vaccine,” promises to be one of the major highlights. We spoke with Sodoro, Mooney, & Lenaghan LLC’s Patrick Sodoro, who helped organize the panel, to find out what to expect.

Can you give our readers a sneak peek into what they will hear on May 12?

As we all know, COVID-19 has impacted each of our lives, and it has also had an immense effect on workers’ compensation and the insurance industry. Employers and carriers have had to be nimble and adapt quickly in the areas of technology, human resources, and policy-making in order to stay ahead of the curve. Our session will examine the benefits and potential pitfalls involved in the different practices being employed in our industry when it comes to dealing with the pandemic.

Is there a clear-cut answer to the question, “Can employers mandate vaccines?”

This question does not have a clear-cut answer because employment questions are so fact-specific. The short answer, however, is “yes,” most employers can mandate vaccines. The vast majority of employees are employed at-will, so they can be hired or fired for any reason—including a refusal to get vaccinated. 

Similarly, employees can leave their jobs if their employers mandate vaccination and they want to skip the shot. The U.S. Equal Employment Opportunity Commission recently announced that employer-mandated vaccinations do not necessarily violate the Americans With Disabilities Act. However, an employer needs to be sensitive to individual employee concerns about vaccination and the reasons for those concerns. For example, if an employee has a religious opposition to vaccination or a health condition that makes vaccination medically unadvisable, then the employer needs to be ready to make exceptions, or risk violating federal law.

What trends are you seeing in terms of compensability in workers’ compensation? Are there any differences amongst the states?

Each state appears to be handling COVID-19 workers’ compensation claims differently. Namely, Missouri enacted an emergency rule (on a short-term basis) to permit first responders to receive workers’ compensation benefits due to contraction of COVID-19 or quarantine due to possible exposure. This rule was one of the first to be enacted in the Midwest. 

In addition to instances of legislatively created, rebuttable presumptions of relatedness, it appears that our Midwestern jurisdictions will analyze COVID-19 claims within the confines of a compensable injury, with a general focus on whether COVID-19 claims satisfy the requisite burden of proof (i.e., prevailing factor and similar “tests”), and whether the infection was contracted within the course and scope of employment. 

Can you explain the role of the other panelists and how the session will work?

Kristian Cross (Vernis and Bowling), Jay Gates (Arthur J. Gallagher & Co.), and Melissa Icban (Sedgwick) round out the panel, and our goal is to cover not only some of the “nuts and bolts” related to how our industry is dealing with the pandemic, but also to have a conversational type of presentation. Our hope is that this approach will do two things: bring the panelists’ potentially differing views on hot-button issues to the table, and promote questions from our audience. Ultimately, we want our audience to walk away with some additional knowledge, but also with smiles on their faces.

To register, head to theclm.org/