Virginia’s largest school insurer says worker’s compensation is unlikely for teachers who catch COVID-19

Virginia’s largest insurer for local school divisions had a clear message for administrators on Monday: Don’t worry about COVID-related worker’s compensation claims from school employees.

“The burden of proof to determine that’s where you contracted the disease is going to be tough to do,” said Lee Brannon, the senior school specialist for VACORP, during an online summit for the Coalition of Small and Rural Schools of Virginia. As public schools weigh their options for reopening in the fall, Brannon said he’s received questions from “a lot of people” about what would happen if a teacher — or any other school employee — filed for worker’s compensation after contracting COVID-19 on the job.

“You know, have you been quarantined inside your home and the only thing you did was get in your car and drive to the school and drive home each and every day?” Brannon continued. “You did not stop at a gas station, you didn’t get groceries?”

“It doesn’t mean you tell an employee not to file a claim,” he said later, adding, “You can’t tell them they can’t do that and then go through the processes. But just because they file a claim does not mean that it will be compensable.”

For educators and advocates, the messaging from VACORP — “the number one coverage provider of property, liability and workers’ compensation coverages and related risk management services” for counties and local school divisions, according to its website — compounded concerns that Virginia’s worker’s compensation system is ill-equipped to handle an expected surge of COVID-19 cases as some schools plan reopen this fall.

New infections are “not a matter of ‘if,’ it’s when,’” said Dr. Noelle Bissell, director of the New River Health District, during the same webinar. And while some of the state’s largest school divisions, including Fairfax County and the city of Richmond, have announced plans for fully remote learning, others are still considering full in-person instruction or hybrid plans that would bring students and teachers to campus for part of the week. The Virginia Department of Education doesn’t have a “verified tally” on reopening decisions, spokesman Charles Pyle wrote in an email Wednesday, but the agency provided a list of news articles that shows at least a dozen districts have introduced plans that involve at least some in-person teaching.

For school employees who do return to work, there are likely to be few protections if they contract the virus, said Mike Beste, a worker’s compensation attorney in Richmond. While most claims involve accidents or injuries, Virginia law does include a category called “occupational disease,” which offers benefits for conditions that can be specifically linked to certain lines of work.

This year, for example, the state’s General Assembly passed a bill that made post-traumatic stress disorder a compensable claim for firefighters and law enforcement. In 2019, a new bill made it easier for firefighters to claim benefits for cancers that have been connected to smoke and other hazardous chemicals. Those types of legislative changes put the burden of proof on the insurance company if a claim is contested, Beste said. It’s presumed that a certain job contributed to the disease, and it’s up to the insurer to prove otherwise.

But for most diseases, the burden of proof is much higher for employees. Those include the flu and other “ordinary diseases of life” that affect the general public, according to Virginia code. 

“VACORP and other insurance carriers are saying ‘clear and convincing evidence,’ which is basically almost as high as ‘beyond a reasonable doubt,’” Beste said. Under the state’s laws, it’s difficult for most employees other than health care workers to claim an infectious disease as “occupational” unless they have airtight proof that they caught it at work. Brannon told school administrators that the state’s current worker’s compensation laws consider coronavirus as “just another influenza-type illness, which is typically not covered, from a worker’s compensation viewpoint.”

“I could argue that there’s a lot of people in a classroom and a lot of people in a school,” Beste added. “I could bring in evidence to show that people had been infected. But again, this is something that’s so highly contagious — it’s ripping through our communities. So, how are you really going to prove it? It’s just such a high burden that I don’t know how a teacher is going to get benefits.”

VACORP administrator Chris Carey declined to answer specific questions about whether the company planned to challenge COVID-related claims and what types of benefits it would provide. “I can’t answer a question to something that hasn’t occurred,” he wrote in a Tuesday email. “We will investigate each claim based on the circumstances and make a determination.”

But Kathy Beery, a strategy team member for Virginia Educators United, said the current uncertainty was another major frustration for teachers. A former reading specialist for Harrisonburg City Schools, Beery said she ended her contract with the district and opted for an early retirement when administrators unveiled a reopening plan that included four days of in-person instruction. In private Facebook groups, Beery said she’s seen other educators discuss their wills, or talk about developing advance directives in case they’re hospitalized for COVID-19. 

“It reinforces the whole idea that teachers are expendable,” she said. Worker’s compensation benefits help pay for medical treatment and partially reimburse lost wages. Without them, Beery said teachers are terrified of catching the virus and racking up huge medical bills that might continue for months or even years. As more information emerges about the disease, some doctors are reporting neurological conditions, blood clots and even chronic fatigue syndrome that could be linked to the virus

“The concern is that depending on the health insurance that’s offered by their district, they could wind up bankrupt,” Beery said. Keith Perrigan, the president of COSARS and superintendent of Bristol Virginia Public Schools, said some of his teachers are paying out-of-pocket for medical scrubs — something Beery said she’s also seen online. Currently, Bristol plans to offer a full five days of in-person instruction, but Perrigan said the district is currently evaluating its proposal as cases increase in Southwest Virginia.

Teachers aren’t the only employees worried about catching the virus on the job. At least three police officers in Bristol have contracted COVID-19, and Beste said he has two clients — not educators — who are currently battling for benefits. State Sen. Scott Surovell, D-Fairfax, said there’s been discussion among some legislators over introducing a new bill at a special session in August that would make the virus a compensable disease for first responders and medical workers.

Protections for teachers haven’t come up, Surovell said. But earlier this month, some Republican legislators promised to introduce legislation that would offer legal immunity for school districts who choose to reopen for in-person learning.

“Too many school districts are having to make decisions based off the fear of litigation,” said Sen. Jill Vogel, R-Fauquier.