Nebraska Supreme Court Ruling on COVID-19 Workers' Compensation Claim

In the recent decision, Thiele v. Select Medical Corp., the Nebraska Supreme Court overturned the denial of a woman's workers' compensation claim for a COVID-19 infection.

Christine Thiele contracted COVID-19 in April 2020 while working as a nurse liaison at a critical care recovery hospital in Omaha. Thiele filed a Petition in the Nebraska Workers' Compensation Court alleging that COVID-19 is an occupational disease caused by her work and that she is entitled to benefits as a result of her exposure.

"Occupational disease" is defined in Section 48-151(3) as "disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment, and excludes all ordinary diseases of life to which the general public is exposed."

Initially, the Nebraska Workers Compensation Board denied her claim, ruling that COVID-19 was not to be considered an occupational disease. However, Thiel appealed, and the Nebraska Supreme Court reversed the dismissal of her case, finding that COVID-19 was still rare enough to be considered a particular risk for healthcare workers at the time of symptoms' contraction.

The Court's decision was split 4-3, with three justices endorsing one opinion considered the lead opinion; the result was that the trial judge should not have dismissed Thiel's claim and allowed the case to proceed to trial. Three justices dissented with the reasoning and result of the lead opinion. Ultimately, this decision does not resolve the ongoing debate about whether COVID-19 can be considered an occupational disease under the Nebraska Workers' Compensation Act.

The lead opinion introduced a new legal principle. It argued that when determining whether an illness is an 'ordinary disease of life,' the focus should be on the period of exposure prior to contraction or onset of symptoms, rather than the circumstances at the time of the hearing. In Thiel's case, this meant that the trial judge should have considered when she contracted the virus in 2020, a time when healthcare workers faced a heightened risk of exposure, rather than when the Petition was filed in 2022.

On the other hand, the three justices who dissented emphasized that COVID-19 has always spread in the same way; any person-to-person interaction carries the risk of contracting COVID-19 and found that COVID-19 cannot be considered anything other than an ordinary disease of life, regardless of the time period.

Thiel's case, while not providing binding authority or clarity on whether COVID-19 should be considered an occupational disease, does offer a starting point for future cases. The Court's opinion suggests that when determining if an illness, specifically COVID-19, is an ordinary disease of life, one must focus on the period of exposure. This interpretation could potentially influence future workers' compensation claims related to COVID-19.

Nebraska Employees Terminated for Refusing to Receive a COVID-19 Vaccination Pursuant to An Employer Instituted Vaccine Requirement Eligible for Unemployment Compensation

The Nebraska Department of Labor (NDOL) recently issued a guidance memorandum regarding unemployment benefit eligibility for employees terminated for refusing to receive a COVID-19 vaccination.  The guidance memorandum posted very quietly on the NDOL website is advisory in nature, but is binding on the NDOL, including its claims examiners and appeals tribunal, and Administrative Law Judges, unless or until amended by the NDOL.  Let’s examine the new guidance to determine its full effect on Nebraska employers.

Background.

The guidance memorandum posted in late November, 2021 is intended to provide individuals and Nebraska employers with an understanding of how the NDOL will interpret the definition of “misconduct” as applied under the Nebraska Employment Security Law to determine a separated employee’s eligibility for unemployment compensation benefits.  It has become settled law in Nebraska that, when an employee is involuntarily terminated from employment, the employee is eligible for unemployment compensation benefits unless the reason for the termination amounts to “misconduct”.  Misconduct is defined under the Nebraska Employment Security Law as conduct “not in the best interests of the employer.”  As a practical matter, employees terminated for unsatisfactory performance are not disqualified from receipt of unemployment compensation benefits, and there must be some clear violation of a critical employer interest, policy or rule to constitute misconduct.  Employees found to have engaged in misconduct that is gross, flagrant, willful or unlawful receive a more lengthy disqualification for eligibility for unemployment compensation benefits. 

New Guidance.

The NDOL’s recent guidance implements the following rule to be followed within the agency in employee separations due to the employee’s refusal to receive a COVID-19 vaccination.

“For all individuals who began work for an employer prior to an employer instituting a COVID-19 vaccine requirement:

--  an individual who is discharged from employment for refusing to receive a vaccination against Covid-19, shall be deemed to have been discharged for reasons other than misconduct and not be disqualified for unemployment benefits on account of such discharge; and

--  impact to an employer’s experience account will be determined under Neb. Rev. Stat. § 48-652.”

In short, the guidance indicates that employees who are already employed when the employer implements a new COVID-19 vaccination mandate will receive unemployment compensation benefits, and those benefits will be applied against the employer’s unemployment compensation tax account.  Since the guidance is expressly limited only to those employees who became employed prior to the employer-instituted vaccination requirement, any employee accepting employment with an employer when the COVID-19 vaccination requirement has already been instituted, and who then refused to get a vaccination, would be subject to disqualification from receipt of unemployment compensation benefits due to violation of a known policy, i.e., conduct not in the best interests of the employer.

As a practical matter, however, it is not likely that any applicant who is going to refuse a COVID-19 vaccination in order to comply with the employer’s mandate would accept such employment in the first place, and it is not likely that this will become a major issue. 

Moreover, the recently issued COVID-19 vaccination requirements at the federal level are not currently being implemented or enforced, as the OSHA mandate covering private employers with more than 100 employees, the CMS rule requiring mandatory COVID-19 vaccinations for healthcare workers, and the federal mandate for all employees of employers with federal contracts, have all now been blocked by Federal Courts with the result that all implementation and potential enforcement has been terminated at the federal level for the time being. 

The NDOL apparently felt that this guidance memorandum and advisory was necessary since some employers are implementing COVID-19 vaccination mandates on their own.  Indeed, in issuing the guidance, the NDOL expressly recognized that under Nebraska law employers may institute COVID-19 vaccination requirements, while also expressly recognizing that Nebraskans have individual responsibility and personal freedom of their healthcare decisions and that the decision to receive a COVID-19 vaccination is a personal choice involving medical, religious, and other personal factors.  Based on these statements and the recognition that requirements may be issued by employers regarding COVID-19 vaccinations which may not have existed at the time individual employment was accepted, apparently caused the NDOL to believe that a policy guidance pronouncement was in order.

Time will tell how these issues will play out in Nebraska and at the federal level, and we will keep you updated on any further developments in this area.

Erickson | Sederstrom PC’s employment attorneys are well-versed in the COVID-19 pandemic-related changes in the legal and HR landscape. They can be reached 402-397-2200.

Long-Haul COVID-19 Illness May Qualify as a Disability Under the Americans with Disabilities Act

Although most people with COVID-19 recover within weeks, some continue to experience symptoms months or longer following initial infection or may experience new or recurring symptoms at a later time. This condition is referred to as “long COVID” and those who suffer from this condition are often referred to as “long-haulers.” 

Due to the rise of long COVID as a significant health issue, the Office for Civil Rights of the Department of Health and Human Services (“HHS”) and the Civil Rights Division of the Department of Justice (“DOJ”) collaborated to develop guidance about whether individuals suffering from long COVID are considered to have a disability entitling them to protection under Titles II and III of the Americans with Disabilities Act (“ADA”) (which apply to governments and public accommodations), the Rehabilitation Act, and the Patient Protection and Affordable Care Act (“ACA”), all of which protect individuals with disabilities from discrimination. While the guidance is not directly applicable under Title I of the ADA, which governs private employers, it is nonetheless instructive and provides best practices for private employers. 

According to the Centers for Disease Control and Prevention (“CDC”), people with long COVID have a range of new or ongoing symptoms that can last weeks or months after infection with the virus that causes COVID-19 and that can worsen with physical or mental activity. Examples of symptoms of long COVID include but are not limited to: 

·  Difficulty breathing or shortness of breath

·  Tiredness or fatigue

·  Difficulty thinking or concentrating (sometimes referred to as “brain fog”)

·  Cough

·  Chest or stomach pain

·  Headache

·  Fast-beating or pounding heart (also known as heart palpitations)

·  Joint or muscle pain

·  Sleep problems

·  Fever

·  Dizziness on standing (lightheadedness)

·  Mood changes

·  Change in smell or taste 

Long COVID may qualify as a disability under the ADA, the Rehabilitation Act, and the ACA if the symptoms or condition constitute a “physical or mental” impairment that “substantially limits” one or more major life activities. 

Major life activities are a broad category, including things such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, writing, communicating, interacting with others, and working. The term also includes the operation of a major bodily function, such as the functions of the immune system, cardiovascular system, neurological system, circulatory system, or the operation of an organ. The impairment does not need to prevent or significantly restrict an individual from performing a major life activity to “substantially limit” the major life activity and the limitations do not need to be severe, permanent, or long-term to qualify as a disability. Indeed, in a joint statement issued July 26, 2021, the DOJ and HHS said “substantially limits” should be interpreted broadly and should not demand extensive analysis, and provided the following examples of situations in which a COVID-19 long-hauler might be substantially limited in a major life activity: 

·         A person with long COVID who has lung damage that causes shortness of breath, fatigue, and related effects is substantially limited in respiratory function, among other major life activities. 

• A person with long COVID who has symptoms of intestinal pain, vomiting, and nausea that have lingered for months is substantially limited in gastrointestinal function, among other major life activities.

• A person with long COVID who experiences memory lapses and “brain fog” is substantially limited in brain function, concentrating, and/or thinking. 

However, long COVID is not always a disability. An individualized assessment is necessary to determine whether a person’s long COVID condition or any of its symptoms substantially limits a major life activity. When long COVID does qualify as a disability, those suffering from long COVID are entitled to protections and certain accommodations under the above laws, which may include leave, part-time work and/or job restructuring. People with severe COVID-19 symptoms that last for months may also be covered by the Family and Medical Leave Act (“FMLA”) in addition to the ADA, while those who recover quickly may not be covered by the ADA but might be protected by the FMLA. 

If you are an employee or employer seeking guidance on whether long COVID qualifies as a disability, and the scope of the laws’ coverage and application, the employment attorneys at Erickson | Sederstrom can assist you.

Small Business Protection and the CARES Act

The Coronavirus Aid, Relief, and Economic Security Act (“CARES”) has been signed into law to aid against the economic impacts created by the spread of the coronavirus. One program under the CARES Act, known as the Paycheck Protection Program (“PPP”), provides protection to small businesses and nonprofits by providing low interest loans (with interest capped at 4%) with loosened requirements compared to those generally applicable to small business loans. The loans are made by private lenders and will be guaranteed by the Small Business Administration (“SBA”). The loans are nonrecourse loans, meaning there is no recourse against an individual shareholder, member, or partner so long as the proceeds are used for one of the reasons outlined below. There are no personal guarantee or collateral requirements for these loans. In addition, these loans may be fully forgivable, subject to certain requirements outlined below.

Beginning April 3, 2020, small businesses and sole proprietorships can apply for the loans under the PPP through existing SBA lenders. Applications can be submitted beginning April 10, 2020 for independent contractors and self-employed individuals through existing SBA lenders. Applications can be submitted through all other lenders once they enroll in the PPP. Although the PPP is open until June 30, 2020, borrowers are encouraged to apply as quickly as possible because there is a cap on the amount allotted for the loans.

These loans apply to businesses that employ no more than the greater of:
• 500 employees; or
• The size standard established by the SBA for the industry in which the business operates.

The loans also apply to certain restaurant, hotel, food and beverage service and hospitality industry businesses with an NAICS code beginning with 72 that employ fewer than 500 employees per physical location. For the purposes of determining the 500-employee threshold, applicants should include full time, part-time and other basis employees. General SBA affiliation rules apply, subject to certain waivers for NAICS 72 businesses, franchises, and businesses licensed under Section 301 of the Small Business Investment Act. This may preclude many companies owned by private equity from taking advantage of the program.

The maximum loan amount is determined as the lesser of:
• 2.5 times the average monthly payroll costs during the 1-year period prior to the date the loan is made plus the outstanding amount of certain SBA loans made on or after January 31, 2020; or
• $10,000,000.

The maximum loan amount equation outlined above varies for seasonal employers and those not in business during the period beginning 2/15/2019 and ending 6/30/2020.
These loans can be used for the following payments (subject to certain specified exclusions):

• Payroll costs;

• Group health care benefits during periods of paid sick, medical, or family leave, and insurance premiums;

• Employee salaries, commissions, or similar compensations;

• Mortgage interest payments incurred before February 15, 2020;

• Rent under leases entered into before February 15, 2020;

• Utilities for which service began before February 15, 2020; and

• Interest or other debt obligations that were incurred before the covered period.

Guidance from the United States Treasury Department has indicated that the loans will be forgiven so long as they are used for the purposes outlined above over the 8 weeks after receiving the loan and employee headcount and compensation levels are maintained. Also, it is anticipated that no more than 25% of the forgiven amount can be used for non-payroll costs. Borrowers have until June 30, 2020 to restore full-time employment and salary levels for any changes made between Feb. 15, 2020 and April 26, 2020.

In order to obtain a loan, the borrower must make the following certifications:

• The uncertainty of economic conditions makes necessary the loan request to support operations;

• The funds will be used for one of the above-listed uses; and

• Borrower has not previously submitted an application or received proceeds for the same purpose and amount.

Further, borrowers will need to have been in operation on February 15, 2020 and had employees for whom it paid salaries and payroll taxes.

We understand the SBA has been working to create a streamlined loan application through an electronic portal to facilitate its and the participating lenders’ ability to move applications through the system and disburse the $349 billion as quickly as possible. We also understand that the SBA is working on regulations implementing the PPP and providing guidance in anticipation of the CARES Act enactment. The regulation may come out in stages, and we will attempt to provide further guidance to our clients as new information becomes available. If you have any questions regarding the PPP, please contact a member of our Corporate/Business Law group.

The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.

FAMILIES FIRST CORONAVIRUS RESPONSE ACT AND WHAT IT MEANS FOR EMPLOYEES AND EMPLOYERS IN NEBRASKA

On March 18, 2020, in response to the novel coronavirus pandemic, Congress enacted the Families First Coronavirus Response Act to provide Americans paid leave, free testing, and access to certain health benefits in order to protect public health. The Act contains two divisions that specifically detail the responsibilities of the employee and employer:

• Division C –Emergency Paid Leave Act of 2020

• Division D – Emergency Unemployment Insurance Stabilization and Access Act of 2020

DIVISION C –EMERGENCY PAID LEAVE ACT OF 2020

Division C provides benefits to employees and employers when an employee is unable to work due to COVID-19.

Qualification Criteria

Employee:
• The employee has a current diagnosis of COVID-19
• The employee is quarantined (including self-imposed quarantine), at the instruction of a health care provider, employer, or government official, to prevent the spread of COVID-19.
• The employee is caring for another person who has COVID-19 or who is under a quarantine related to COVID-19.
• The employee is caring for a child or other individual who is unable to care for themselves due to the COVID-19 related closing of their school, childcare facility, or other program.

Employer:
• Government employer
• Companies with 50 – 500 employees
Employers with greater than 500 employees are required to pay the employee during the 80 hours of emergency leave, but are eligible for reimbursement through tax credit.
These benefits are active from January 19, 2020 to January 19, 2021. The benefits can be paid retroactively with applications until July 19, 2020.

The Benefits:
• Regular to two-thirds of the individual’s average monthly earnings (based on the most recent year of wages or self-employment) up to a cap of $4,000.
• Applicants can apply online, by phone, or by mail. In most cases, payments will be issued electronically.
• The beneficiary is responsible for applying.

Summary:
Employees will be compensated for up to weeks (80 hours) of regular pay if they are quarantined or self-quarantined. Employees who are quarantined in order to care for another person who has COVID-19 or for a child is entitled to two-thirds their regular rate of pay for two weeks (80 hours). Covered employers are eligible for dollar-to-dollar reimbursement through tax-credits for all qualifying workers.

DIVISION D – EMERGENCY UNEMPLOYMENT INSURANCE STABILIZATION AND ACCESS ACT OF 2020

Division D provides benefits to individuals who are unemployed due to COVID-19.

In order to slow the rate of novel coronavirus (flatten the curve), many businesses have temporarily or permanently closed which has resulted in massive layoffs. Division D of the Act expands existing Unemployment Insurance to address the current employment environment for many Americans. If an employer cannot retain their current number of employees or must reduce employees’ hours have the follow responsibilities.

Duties and Responsibilities

Employer:
• Must provide notification of potential unemployment insurance eligibility to laid-off employees
• Must ensure that employees have at least two ways to apply for benefits
• Must notify applicants (the laid-off employee) when an application is received and being processed and if the application cannot be processed, provide information to the applicant about how to ensure successful processing. Employee
• Must apply for unemployment insurance
• Not obligated to seek employment between March 22, 2020 and May 2, 2020.

Benefits:
In general, the unemployed worker in Nebraska will receive half their regular weekly wage up to $440 each week and an additional $600 provided by the Act in effort to mitigate the economic impact of the novel coronavirus pandemic. Short Term Compensation may be available to employees whose hours have been cut due to the pandemic. Benefits should be sought through NEworks.nebraska.gov.

Qualifications:
• Unemployed worker has had one unpaid week
• Unemployed worker whose job loss is due to no fault of their own
• Self-employed worker whose earnings have been impacted by the pandemic

Summary:
Employees who are laid off or face reduced hours due to COVID-19 may apply for unemployment benefits or short term compensation and are not required to seek new employment between March 22, 2020 and May 2, 2020. The turn around time for receipt of benefits is not currently known.