Following is the section of a Congressional Research Service report on the Federal Employees’ Compensation Act examining current policies and proposed changes for benefits under that law related to Covid-19.
FECA Coverage of COVID-19 Exposure
A federal employee who contracts Coronavirus Disease 2019 (COVID-19) in the course of his or her federal employment is eligible for FECA benefits. However, as in all other cases, the employee must demonstrate a causal relationship between the disease and his/her employment. Due to the nature of COVID-19 transmission, including the lack of complete understanding about how Sars-CoV-2, the virus that causes COVID-19, is transmitted by asymptomatic individuals and how long the virus can remain viable on a variety of surfaces, there is concern that this could prove difficult for some employees, preventing them from receiving FECA benefits. On March 30, 2020, OWCP issued guidance on how to process FECA claims related to COVID-19.
Continuation of Pay in COVID-19 Cases
If an employee engaged in high-risk employment files a COVID-19 claim, and the employer supports the claim and that the exposure occurred, OWCP will “accept that the exposure to COVID-19 was proximately caused by the nature of the employment” and authorize continuation of pay for up to 45 days.
Employees not engaged in high-risk employment will be required to submit a factual statement and any evidence regarding their exposure. If the employer supports the claim and that the exposure occurred, continuation of pay will be authorized for up to 45 days.
High-risk employment, for the purposes of processing COVID-19 FECA claims, is defined in the OWCP guidance.
The guidance states that: In the case of COVID-19, federal employees who are required to have in-person and close proximity interactions with the public on a frequent basis—such as members of law enforcement, first responders, and front-line medical and public health personnel—will be considered to be in high-risk employment.
The guidance adds: Conditions such as COVID-19 … more commonly represent a work hazard in health care facilities, correctional institutions, and drug treatment centers, among others. The employment-related incidence of COVID-19 appears more likely to occur among members of law enforcement, first responders, and front-line medical and public health personnel, and among those whose employment causes them to come into direct and frequent in-person and close proximity contact with the public.
A footnote to the OWCP guidance states that “a real-time list of occupational codes and/or job series, including the geographic locations where the high-risk determination has been flagged by the agency, will be available to OWCP staff to assist OWCP’s determination that the position falls within that category.” This list has not been made available to the public.
Testing for COVID-19
The OWCP guidance provides that if a federal employee encounters difficulty in getting tested for COVID-19, OWCP will authorize testing if the employee is in high-risk employment or has a confirmed employment-related exposure.
Establishing a Causal Relationship in COVID-19 Cases
To receive compensation for disability beyond the continuation of pay period, and medical benefits under FECA, an employee with COVID-19 will have to establish a causal relationship between the disease and his or her employment. The determination of a causal relationship is based on the case’s factual and medical background. The OWCP guidance, citing a March 2020 decision by the ECAB, states that “in the case of high-risk employment, the factual and medical background would include the physician’s recognition that the employee is engaged in high-risk employment that included exposure to COVID-19 while in federal employment.”
Legislation to Create a Presumption of FECA Eligibility for COVID-19 Cases
Section 150006 of H.R. 6379, the Take Responsibility for Workers and Families Act, would create a presumption of FECA eligibility for any of the following groups of federal employees diagnosed with COVID-19 between January 30, 2020, and January 30, 2022:
health care workers;
law enforcement officers (including corrections officers);
Transportation Security Administration (TSA) officers;
employees of the U.S. Postal Service (USPS), Department of Veterans Affairs (VA), and Indian Health Service (IHS);
employees carrying out duties that “require substantial contact with the public”; and
“any employee whose duties include a recognized risk of exposure to the coronavirus.”
H.R. 6656, the Coronavirus Workers’ Compensation for TSA Employees Act, would create a presumption of FECA eligibility for any of the following groups of Transportation Security Administration (TSA) employees diagnosed with COVID-19 between January 30, 2020, and January 30, 2022:
transportation security officers;
federal air marshals;
canine handlers; and
any TSA employee “carrying out duties that require substantial contact with the public.”
Section 70303 of H.R. 6800, the Heroes Act, as passed by the House of Representatives, would create a presumption of FECA eligibility for federal employees diagnosed with COVID-19 who meet the following conditions:
were employed in the federal service at any time between January 27, 2020, and January 20, 2022;
carried out duties requiring contact with patients, the public, or coworkers;
carried out duties that included a risk of exposure to SARS-CoV-2 or another coronavirus with pandemic potential; and
were not teleworking on a full-time basis for the entire duration of the period between January 27, 2020, and January 20, 2022.
Under the presumptions of eligibility proposed in these bills, specified employees would not be required to demonstrate a causal link between COVID-19 and their employment to be eligible for all FECA benefits.