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The Urgent Need for Workers Compensation Pandemic Planning
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The Urgent Need for Workers Compensation Pandemic Planning

Workers' Compensation


The 2009 influenza pandemic created a new framework of acts and regulations to respond to the World Health Organization’s (WHO) phase 6 pandemic alert. Potential governmentally imposed employment actions resulting from regulatory work disruptions to prevent the spread of disease were qued up in anticipation. 

The patchwork industrial-health social programs were never designed to meet the challenge of a widespread infectious disease outbreak. While workers’ compensation was envisioned as a summary and remedial social insurance program, the challenges facing the workers’ compensation system to deliver benefits as promised could have been seriously burdened.


There was a global reaction to the 2009 influenza pandemic. On April 25, 2009, WHO Director-General Dr. Margaret Chen declared the H1N1 virus outbreak a “Public Health Emergency of International Concern.” The international declaration indicated that a coordinated international response was potentially necessary to prevent and curtail the spread of the disease that was perceived as a public health risk. Recommendations to restrict both trade and travel may follow.


The United States had structured a response on both a State and Federal level to the 2009 influenza alert. The Public Health Service Act (PHS) permitted the Secretary of Health and Human Service (HHS) to access a special emergency fund, allows the use of unapproved medical treatments and tests, and allows waiver of certain reimbursement of Medicare and Medicaid expenses, and waives penalties and sanctions for violation of the HIPAA Privacy Rule requirements. Additionally, the President issued an emergency declaration under The Stafford Act to coordinate emergency relief under State and Federal programs, i.e., the use and distribution of anti-viral medications.

The Federal government established sweeping powers under the PHS that could have disrupted employment throughout the country. Recommendations for school closings impacted children and staff. Approximately 700 facilities were closed in the Spring of 2009 during the initial H1N1 outbreak. The Federal government under the PHS has the authority to quarantine (interstate and border) and to isolate. An Executive Order (E.O. 13375, April 2005) enumerates the “quarantinable diseases.” Travel restrictions could be imposed to limit the spread of a communicable disease. Employees may not be permitted to board flights under either voluntary airline restrictions or through the Federally imposed “Do Not Board” lists.

These closings and restrictions raised issues about what programs if any, would be able to provide benefits to the employees because of the involuntary nature of the closings and disruptions. A Harvard School of Public Health study revealed that 80% of businesses foresee severe problems maintaining operations if there is an outbreak.


The workers’ compensation system could have been requested to provide temporary disability benefits for occupational disease absences on a massive scale never before experienced. Pre-emption by superseding emergency regulatory actions could have curtailed employment that will trigger the implementation of State workers’ compensation benefits. The employer and the workers’ compensation insurance carriers would have been required to pay temporary disability and medical benefits as a direct consequence of efforts to prevent the spread of a communicable disease. The carefully crafted employee-employer notification structure integrated into the workers’ compensation system may be partially or entirely disrupted by the consequences and chaos of the global health emergency.


Workers’ Compensation claims arising out of the influenza pandemic of 2009 needed to fit into the convoluted framework of statutory acts and regulations. Reimbursement from the usual collateral third-party reimbursement sources could have been restricted. In addition to the Doctrine of Sovereign Immunity, enjoyed by the Federal and State governments, other legislation, including The “Public Readiness and Emergency Preparedness Act" (PREP Act), limits the liability of others under certain specific emergency circumstances.

The enormity of a global Pandemic presented a new and novel challenge to the system and one that must be considered by both Federal and State planners. Workers’ Compensation programs have adapted to emergencies before, including natural disasters and terrorist attacks. The situation's urgency requires that the system be vaccinated now and that pandemic preparedness plans are designed to prevent the spread of an infectious disease in the workplace and to respond with an improved social insurance program for workers. A system that gears itself up only to defend claims and delay emergent medical care fails to meet the legislative intent of the statute. 


The author, Jon L. Gelman, practices law in Wayne, NJ. He is the author of NJ Workers’ Compensation Law (Thomson-Reuters) and co-author of the national treatise Modern Workers’ Compensation Law (Thomson-Reuters). For over five decades, the Law Offices of Jon L Gelman  1.973.696.7900 have represented injured workers and their families who have suffered occupational accidents and illnesses.

Recommended Citation: Gelman, Jon L.,  The Urgent Need for Workers Compensation Pandemic Planning, (2009-2020),

© 2001-2023 Jon L Gelman. All rights reserved.

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