Nurses at the frontlines of the coronavirus battle (photo: Michael Appleton/Mayor's Office)
Nine weeks after Governor Andrew Cuomo closed all but essential businesses and services, many of the state’s essential workers are now finding themselves struggling with their employers and insurance companies for injury benefits related to COVID-19, and for those who die, their survivors are left to pick up the mantle.
Infected front-line staff, from health-care workers to grocery store clerks, are being asked to prove they contracted the virus on the job in order to receive workers' compensation and death benefits, union leaders and elected officials say. In some cases, insurance companies are asking nurses to identify which patient may have exposed them to the virus or when they had a breach of personal protective equipment, the officials said.
"There was an assumption that the employers were doing the right thing, that they were considering this a workplace illness because it was pretty obvious that all essential workers, to have to be out there while we were all sheltered in place, of course were exposed," Pat Kane, executive director of the New York State Nurses Association, said in an interview. "Certainly in the nurses' case, there is a sign on the door that says, 'This patient has COVID,' and you know you are going to be doing procedures that put you at risk. That's your job."
According to labor and elected officials, under the state's workers' compensation law, the burden falls on the employee to show they contracted the virus at work and not elsewhere, leaving first responders to pinpoint the specific circumstances in which they might have been exposed -- a monumental task in a pandemic, they say, and harder still for survivors of the deceased.
Labor unions, including NYSNA and the New York State AFL-CIO, have called unsuccessfully on the New York State Workers' Compensation Board to acknowledge COVID-19 as an "occupational disease" for front-line workers, which they say would create the presumption that they contracted it as part of the hazards of the workplace. The unions are now eying a bill in the State Legislature that would add the virus directly to the law, removing a significant administrative hurdle to workers receiving benefits.
The provision would mean employees in workplaces with a documented outbreak would be eligible to receive salary, healthcare, and survivors' benefits for COVID-related illness unless it could be proven that they contracted the virus in the community.
"Insurance companies have been denying claims from workers who have gotten sick with COVID-19,” said Assemblymember Aravella Simotas, who sponsors the bill with State Senator Jessica Ramos, both Queens Democrats. “They are requiring the worker to establish that they contracted COVID-19 on the job. What Senator Ramos and I want to do is we want to eliminate the administrative and legal burden of having to prove that they contracted COVID-19 at work."
"This is the number one issue for essential workers right now, aside from of course needing regular PPE," said Ramos, who chairs the Senate’s labor committee and represents some of the hardest hit zip codes in the country, in an interview.
The State Legislature will be in session Tuesday and Wednesday this week for the first time since the state budget was passed in April, but it is unclear whether the bill will be taken up. Simotas and Ramos say they have not been notified about what bills will be voted on as of Saturday, but are hopeful theirs will be included.
"We are discussing the session agenda with our members," wrote Mike Whyland, spokesperson for the Assembly Democratic majority and Speaker Carl Heastie of the Bronx, in an email Monday. The Senate Democratic Majority did not respond to requests for comment.
The price-tag of insuring over a million workers who may have been exposed to the virus leaves the legislation's future uncertain as the state forecasts a $10 to $15 billion budget gap this year alone due to the coronavirus-induced economic crisis.
At his daily coronavirus briefing on Monday, Cuomo announced the state would work with localities to provide death benefits to "public heroes" who died during the emergency. The governor did not yet provide a full list of who he intends to cover, but mentioned nurses and doctors, police officers, firefighters, EMS, and grocery store workers. The governor was later asked about the Legislature returning to session and said it should only be advancing “revenue-neutral” bills given the state’s severe financial distress.
The New York Workers' Compensation Insurance Rating Board, an association of insurance carriers that sets workers' comp rates in the state, estimated the price of the legislation to be a total of $31 billion, more than triple the $8.7 billion paid annually through the system. The estimate assumes that "much, if not all" of the state's workforce as of 2019, both public and private, would be eligible for benefits, and that every one who is eligible will apply for benefits.
"The cost estimates are just inaccurate," Simotas said. "They are overestimating how many people they think this is going to affect. Every time I've gone against the insurance companies that is always the issue: 'we can't cover, there will be too many claims.'"
According to an analysis from New York City Comptroller Scott Stringer in March, there are just over 1 million front-line workers citywide, staffing emergency rooms, driving buses, cleaning buildings, providing childcare, and running shelters and soup kitchens. Guidance issued by Cuomo along with his “pause” order listed a huge litany of workers considered essential, including dozens of positions that interact directly with the public.
Mayor Bill de Blasio, with backing from the City Council and a smattering of state legislators from New York City, had called for the state to provide line-of-duty death benefits for municipal employees who have died of the novel coronavirus, but he has not pushed for broader workers' compensation. As of de Blasio’s May 19 call, there had been 270 city employees who had died from COVID-19. On May 10, the city extended health insurance coverage to surviving family members of city employees for 45 days.
In March, the state passed legislation making employees eligible for up to two weeks of paid sick leave for isolation due to the coronavirus. The law provides between five days of unpaid leave for employees of small businesses and 14 days of paid leave for workers at large employers. The law also made workers eligible for paid family leave and temporary disability insurance due to COVID-19.
The nurses union says that measure is just a start, because many front-line workers, especially nurses who see infected patients, have high viral loads and are often out sick for much longer than 14 days.
"A thing to emphasize here is they weren't looking for a new benefit," said Kane of NYSNA. Nearly 3,600 nurses in downstate New York (9.2 percent of NYSNA membership south of Kingston) notified their employers of COVID-19 exposure, according to the union. "They are looking for something that everyone should be entitled to in this situation and there was a lot of pushback."
"We are not creating a new benefit,” Simotas said, “we are just ensuring that essential workers who become ill or disabled from COVID-19 can receive the benefits that they are entitled to."
"We are reviewing the legislation, although the workers compensation system already provides that employees who contract COVID-19 from their work will already receive the full benefits available under the Workers’ Compensation Law," wrote Caitlin Giourard, a spokesperson for Cuomo.
But where the burden of proof lies is the crux of the matter for workers struggling with the pressures of a job on the front lines while getting sick or dying of COVID-19.
The Greater New York Hospital Association, a network of over 160 hospitals in the region, did not respond to inquiries about claims that nurses are being asked to prove they contracted the virus at work in order to receive benefits.
"Workers Compensation claims are not evaluated by the employer but by state regulated insurance companies and the state worker’s compensation board," wrote a spokesperson for Montefiore Hospital in the Bronx, in an email to Gotham Gazette. But NYSNA leaders say many hospitals have a culture that discourages workers from filing claims.
Melissa Stewart, a spokesperson for the Workers' Compensation Board, which is appointed by the governor, wrote in an emailed statement: "The law will protect these essential workers impacted by COVID in the workplace and provides for medical care, wage replacement or even death and funeral benefits regardless of the occupational disease designation."
She continued: "A worker who develops COVID-19 should provide details about where he or she works, how often they work, and the type of job duties they perform, especially those involving contact with the public. A claimant needs to have a medical report from an authorized workers’ compensation medical provider stating that work caused the illness."
According to the New York Compensation Insurance Rating Board (NYCIRB), the average temporary disability claim in New York is $600 per week, and the average indemnity for death is $575,000.
"It's kind of a joke to put the additional burden on a nurse to have to prove that she contracted COVID at a hospital,” Simotas said. “It defies logic. It's unfair."
Judy Sheridan-Gonzalez, an emergency room nurse at Montefiore Hospital and president of NYSNA, said that workers' comp is "a bigger thing than us because it involves all the essential workers. The heroes...The heroes that they don't want to give workers' comp to. Why are we heroes? What did we do that's heroic? We took care of people and risked our lives. So can you give us workers' comp when we get sick?"