It’s a matter of evidence
A big question if you have contracted COVID-19 is, will it be IOD? The bottom line is the determination that the injury was work-related. There are a wall of books discussing the ins and outs of this question, but “work-related” is still the bottom line. And work-related boils down to evidence. Evidence that your injury (infection with COVID-19) was related to work.
Remember that IOD costs the City money. The question that will be asked is, how do we know that you weren’t exposed off duty? Good question, because this is, after all, a pandemic. Millions will come down with COVID-19 because exposure is everywhere.
A notice issued by the Chief directs officers who exhibit symptoms associated with COVID-19, if on duty, to go home, and if off duty, to remain at home. An officer can request a COVID-19 screening and shall immediately notify his or her command of the test results. A supervisor shall ensure that the modified employee report for COVID-19 is submitted to Medical Liaison. BUT this does not result in IOD. If you believe that your COVID-19 illness is a result of an exposure to the virus while on duty, you must file an Injury on Duty (IOD) claim. This triggers a bunch of forms that are detailed in the notice.
The end result of all these forms is that Tristar or Elite receives the claim, and within 14 days you are supposed to receive a notice letting you know that the claim has been accepted, denied or delayed. The investigation of a claim can take up to 90 days. Bottom line again, you must prove your right to receive benefits. We are all familiar with proving things because every arrest is wrapped up in establishing the evidence that the suspect committed the crime. Proving things requires evidence.
You will be ahead of the game if you start gathering the evidence as it happens, just in case you do come down with the virus. Think of the City’s potential response. “This is a pandemic! The virus is every-where. You could have been exposed by your children, or when you were shop-ping, or when you went to church, or a movie, or filled your car with gas.” Your best response would be to show that while you were on duty, you were exposed to a particular person at a particular time. That is evidence over speculation.
The Department’s modified Employee’s Report is a good starting place if the pre-printed check boxes apply to your situation. The key to the modified Employee’s Report is satisfying the requirements of “close contact.” If you have come in close contact, as defined by the Department, with an infected person, this is good evidence. However, “close contact” is defined as “within six-feet for more than 10 minutes, or you had unprotected direct contact to secretions or excretions (e.g., sneeze, cough or saliva) with that person.”
And of course, the person must have been diagnosed with COVID-19 or who had the signs and symptoms of the virus infection, and who you can name. Obvious exposures that would fit the employee’s report would be an arrestee in your back seat who is coughing and sneezing, and has a temperature. Unless you can book him in less than 10 minutes.
The problem with the modified Employee’s Report is that close contact is your only option. The virus is spread in far more diabolical ways. Lately, according to talking-head doctors on television, the virus is in atomized drop-lets suspended in air and can live and float for 15 minutes. Ergo, the advice to wear masks. You can walk through a cloud of virus in the air 15 minutes after someone who coughed has left. Forget about the 10 minutes. Also, the virus can live on fabric for three hours, on copper and wood for four hours, on cardboard for 24 hours, on metal for 42 hours and on plastic for 72 hours, according to John Hopkins Hospital. No “close contact” needed to pick up the virus.
This works to the City’s probable position of arguing that your infection could have come from multiple sources outside the work environment. That is why it is important to identify, in advance if possible, any potential exposure to a person diagnosed as positive for COVID-19. And do not limit yourself to the mod- ified Employee’s Report’s definition of close contact. Page two of the form has a large box for listing details. Use it. Examples might include riding in a police vehicle in which an arrestee from the previous watch had COVID-19 symptoms. Working in the same area as an employee who was diagnosed as positive for the virus where keyboards, surfaces, doorknobs, papers or bathrooms were shared.
The possibilities are endless, but they need to be documented, preferably in advance. Details are important. Identify the person who you believe might have been infected, and then identify all the contacts, surfaces or other things shared with that person. Even a shared elevator ride can be relevant.
And remember, turning in the Employee’s Report is NOT putting in for IOD. There is a whole separate process for that which must be followed. The modified Employee’s Report is nothing but a piece of evidence, in case you need it. What if a supervisor refuses to accept your modified Employee’s Report because you answered “No” to the three questions? It could be inferred that all negative answers would preclude the need for the modified Employee’s Report. You still need to have the evidence. Write a regular Employee’s Report (15.7) and present it to the supervisor. On your copy, write down the date, time and name of the supervisor to whom you gave it. Even if it is round filed, your copy will be evidence that the contact occurred if an investigation happens at a later time.
Hopefully, everything in this article will be irrelevant to you at some future date because you did not come down with the COVID-19 virus. Additionally, there are attempts at legislation to make COVID-19 presumptively IOD for first responders. You deserve it. While citizens shelter, you respond. You have my deepest respect. Stay healthy. Wash your hands, and don’t touch your face!
Be legally careful out there.
