 I'm Catherine Norr and welcome to my show, Much More on Medicine. Today we have Natalie Pettit, a workers comp attorney in Hawaii. She practices workers comp and she has so much to tell us about issues regarding COVID-19 law and workers comp. But we're also going to be talking about general issues that you may encounter with COVID-19 because we believe that we are going to have a lot of legal issues in the future and I'm sure that Natalie and I we're both dealing with them now with clients. So Natalie I'd like to welcome you. Thank you it's so great to be here. All right so tell us a little bit about your background as an attorney. Sure I practice primarily in the area of workers compensation. I have done so for over a decade. I do have a background in labor and employment law as well. Prior to private practice I was in the JAG Corps and the United States Army. I deployed to Iraq in 2003 and that kind of lets you know how old I am. So a pretty pretty diverse background. All right fantastic. So in work comp do you represent employers or employees? I represent employers but in my practice it's always very very important to me to do the right thing by both sides and I really strive to come to a fair result for both employers and employees as well. But I do represent the employers. Okay and I'm certainly going to be weighing in on this conversation quite a bit because we're both going to be discussing legal issues that we see in the practice of law and I'm an attorney and I practice insurance defense litigation sports and e-sports law and I actually have been handling some COVID-19 legal issues lately and I know both of us have been diving into some seminars related to COVID-19 to kind of learn more and to hear what other people are doing. And I kind of feel the same way that you do Natalie in that even though I represent the insurance carriers generally or their insurance I do want to be fair and then insurance companies basically have to pay what they owe and deny what they don't owe because when they deny they're actually doing that in favor of other policy holders that's an important aspect of insurance. So you know that's kind of that fairness issue. So we have a lot to cover today so what I'll ask you first Natalie is we'll first start with work cop and then we'll go on to other areas but what I'm really curious about is um is COVID-19 something that would be covered under a work comp? The answer is maybe so we're really diving into uncharted territory. These are very new issues with respect to diseases that are perhaps contracted in the workplace. If you are a medical person you work in a hospital or a nursing care home if you're in the medical field basically it's going to be presumed that that disease was caught in the workplace. However if you're not working in a medical facility usually there has to be some sort of connection to work. I mean it's entirely possible that people could contract COVID you know off the street or from a family member and since there's such a long incubation period two week period of time it's really difficult to tell where it was contracted. Now in Hawaii we do have a presumption of compensability built into the law but with this type of situation it's really incumbent upon employers to do a very thorough investigation. They may want to deny a claim pending investigation if you're an injured worker don't be surprised if this happens it doesn't mean that your claim is going to be denied it just means that they need a little additional time to investigate to make sure that it was in fact contracted at work for example and not from a family member. Natalie I was watching the chief of police on TV recently and she said she made a comment and you know I hope I'm passing this on correctly and you know she'll probably be letting us know if if I'm not but she said something that when the police officers if they contract COVID-19 there would be a presumption that it was caused by work did you hear that statement that she made? I actually did not and of course again these are all new issues so if you're deemed to be an essential worker you know historically when healthcare worker contracts a disease in the workplace generally it's automatically compensable. But for other employees no but you know it's questionable in this situation we've never been in these waters before if you're deemed an essential worker is it automatically compensable like it is for healthcare workers and the answer to that is we just don't know. Okay so we know that we've seen all these situations where employees have had to quarantine for 14 days and and have been off work for that amount of time and you know we I know everyone's been consuming a lot of news regarding this and and lately today we found out that Maui Memorial Medical Center has 15 employees that have apparently contracted COVID-19 and so can you address how it's determined how long the employee would be off and when they would return to work? Sure so the CDC guidelines provide information and some guidance on how employers can help address this type of situation really they defer very heavily to the medical doctor that's treating the patient the employee if generally you would wait the two-week period of time to determine whether or not they are displaying symptoms of COVID-19 once they've been exposed to it but they can be released to return to work sooner by a medical doctor so even if you have a presumed case of COVID meaning they're displaying symptoms but they weren't able to get a test or if there's an actual diagnosis of COVID meaning they got the test and they did test positive you don't necessarily have to wait the full two-week period of time some people their recovery time is quicker and they can be released to return to work sooner what employers are doing starting to do nationwide is once you have if you're looking to return to work once you have two negative COVID tests then you can return to work they say that with one negative COVID test there it can be a false test meaning that there's still a 30% chance the person still has COVID when there are two tests administered that reduces down to 9% and if three COVID tests are administered that reduces the chance down to 3% so they're saying when employers are looking to bring employees back to work that it's a good idea to have them take those two tests in order to make sure that they are not positive when they re-enter the workplace okay i um heard a situation from a friend of mine that stated that he that there was an employee at his office who didn't like to be around anyone using hand sanitizer and so everyone was complaining about the fact that this employee was in their space and they couldn't use hand sanitizer finally they ultimately moved her to another area so that she could like be away from their use of hand sanitizer but everyone in the office ended up getting sick have you had any situations like that i haven't seen those types of situations it doesn't surprise me we see all sorts of of cases roll in i will say um you know that that things are being handled on a case by case basis now and you really have to look at all the facts you want to make sure that you're protecting your employees but at the same time you can't inconvenience everyone else the entire office for example um so you have to find workarounds you have to find reasonable accommodations and and see what can be done if you can find a happy medium to accommodate everybody okay so now i'd like to talk about business interruption clauses and there i know that there are a lot of businesses out there and we've seen some news about this they are trying to get coverage under their business policies for business interruption and um you know i i would just say that when we address this we ask people to read their policies carefully because there are exclusions for particular things and they don't necessarily mention or they they essentially exclude pandemics and viruses however there's going to be legal issues that arise out of those do you have any thoughts on business exclusion policies i my understanding is that you're generally correct i mean i think most of those business interruption policies don't anticipate a worldwide pandemic and those are things that are excluded they're looking more for types of things like floods or you know different events that that might occur that would disrupt the business other than disease i will say though that i would never discourage anyone and i i don't think that you are i'm just throwing this out there i would never discourage anyone from filing a claim i think that it is important um to get the claim on file and then work at determining whether it's something that you can recover for after the fact and it's my understanding that five states have already introduced legislation to expand the coverage under those policies and i don't know if hawai will do that but it's a concern to small insurance carriers who have a potential of going out of business if they have too many claims and there are some um issues regarding possible reinsurance insurance coming in in here because it is a national emergency so or actually it's really a world emergency and so it's going to impact the insurance industry significantly but before we move on to other interesting topics we will be taking a break so um we'll return shortly this is much more on medicine i'm speaking with natalie pettit about covid 19 legal issues hi i'm rosty kimori host of beyond the lines on think tech hawaii i was the head coach for the puno boys varsity tennis team for 22 years and we were fortunate to win 22 consecutive state championships my show is based on my book also titled beyond the lines and it's about leadership creating a superior culture of excellence and finding greatness i feature a wide range of amazing guests who share valuable insights about how going beyond the lines leads to success in everything you do in life i'm looking forward to you joining me every monday at 11 am aloha we're back we're live this is kathryn norre with much more on medicine i'm talking with natalie pettit regarding covid 19 legal issues and uh we're going to talk about supply chain issues i'm sure that many of you have found challenges in getting particular goods when you go to the grocery store uh there's actually a facebook page devoted to helping people locate hard to find items like toilet paper um there are many companies have questions about whether the stay-at-home order applies to certain aspects of their business whether they can operate their factory with employees on us on a assembly line where they can't keep them at six feet apart so that's an issue and and many companies are seeking uh legal advice to help address that issue and whether they can continue their business but natalie do you have any thoughts on that no it's a very well i i do have some thoughts but no answers unfortunately um it's a very very interesting issue because you have so many people that are now working from home as you indicated instead of the regular workplace and so the tight we're consuming more goods at home where previously we relied on our workplace to provide those for example with you know with toilet paper um every everyone's complaining about the toilet paper being out out in the store but a lot of times when you're working you're using your employer's toilet paper for much of the day so your um need has increased and i think that that's something people are failing to recognize also the supply chain is different for what you buy for example in the grocery store um or another store that you would shop at versus the type of goods an employer buys it's a different type of good it's a different um supply chain and that's causing some hiccups in in the system well with respect to i go ahead natalie oh i was just going to say you know with respect to distancing in the workplace staying six feet apart from your co-workers when you're trying to get the goods out is an impossibility um and there are some concessions that i i think are going to need to be made sure absolutely and i see different businesses where they have a difficult time keep a difficult situation where like bank tellers sometimes they're not set up to be six feet apart and that can cause problems but in the supply chain situation my concern is that um there might be a particular small part that would not be a necessity and so it would be excluded like for example in packaging there might be a particular cap on a bottle or something that may you know may mean there's people staying at home complying with the order but they are not in the workforce developing that product that is needed to produce this particular element and there could be shortages that way that's a concern i have and i think that that's where these um determination these legal determinations as to whether these particular portions of the supply chain can continue to operate or whether they are they fall within the provisions of a stay at home order whether it be federal or state or local um let's move on to uh negligence um we are probably going to see a lot of litigation arising out of um COVID-19 and one of the things that is interesting to me is this idea that someone could file a lawsuit against a business and claim that they contracted um COVID-19 from that business or they could file that lawsuit against an individual and i think that those issues make it so that um uh businesses decide not to operate or they decide or a particular um activity is not allowed anymore like a condo complex closes a swimming pool or a tennis court because of fear of that and so uh what have your what have you seen in this regard i think you're right i think it is going to generate a lot of litigation unfortunately you know it's really sad people are really doing their best um to get through really challenging times and um inevitably some people are going to get sick um we've already seen some people die from from COVID-19 again i mentioned this in early on when we started speaking there's such a long incubation period it almost becomes impossible to identify where they contracted the disease so i do think that businesses will have a good defense in this regard but the cost of litigation in and of itself even if they prevail is is huge it's it's a a burden a lot of small employers can't overcome and hopefully you know i hopefully they have insurance that is able to help them in this regard and this is where risk management needs to come in i think that businesses have to make very strategic decisions in order to you know prevent possible COVID-19 um problems and i you know i saw it in my building um where they actually put in a COVID-19 regional testing center on floor on the first floor and that was very concerning to me and um ultimately they after about two weeks they moved it out of the first floor and they moved it down the street to a uh freestanding building i think they they probably got enough complaints from other tenants of the building about having it there and the risk to other people using it another thing that i thought was interesting is that the parking lot was actually a waiting area and i wouldn't go in the parking lot anymore because i thought that is a very dangerous place to be in order around people that actually are there coughing and they want to be tested so i think as individuals we not only have to you know ultimately um be concerned about who's at fault but i think we have to actually make some smart decisions for ourselves to avoid these situations and actually follow orders follow the stay at home order so you don't get sick and you don't have to blame it on someone that's my thought um but now let's move on to um to force majeure clauses and contracts um i'm dealing with this with clients right now in that um march and april are and june and actually march april may and june are very popular times to have events which attract many people and so with everything that's gone on especially in hawaii with we have um quarantine restrictions stay at home orders on different levels and it impedes the ability to go forward with events not only it scares people in terms of registering for events and making plane reservations but also the ability to actually have the event and these clauses in contracts actually can um excuse the parties from performance and one of the one of the requirements is or potential requirements is to determine that the going forward with the contract is an impossibility or there could be acts of god exclusions or government order exclusions natalie do you have any thoughts on uh force majeure clauses just making sure that they're included in any contracts that you have either ones that you're trying to enforce or get out of and future contracts that you may enter into as well we don't know how long the situation is going to last and it may flare up again so you want to make sure that you're protected what i'm hearing a lot is that is not a term a contract term that is frequently used it's very unusual very rare and some contracts they're finding have been drafted without that provision in it which is a huge mistake but you want to make sure that you're reading the the contract very very carefully um in order to be able to take advantage of that provision natalie you have a very good point um some people think that the force majeure contract in a contract uh clause in a contract is just not that important that it wouldn't likely occur but people have to when they enter into a contract they actually have to read the contract carefully and think about what could possibly happen now this is kind of a once in a lifetime situation i never thought about pandemics before and i admit that i never watched the the movie contagion so i had very little information about this and yesterday i was talking to jay fidel on his show about about um like when you buy into the seriousness of this situation and i was a late adopter because i thought that we would not have the problems that we ultimately did so i think that also weighs into how people act natalie did you at what point did you understand the seriousness of the situation i have to laugh i am so type a personality um you know i i don't know as an attorney maybe i just automatically have this catastrophic thinking i want to be prepared for any event or any scenario so um i i feel as though i was prepared i i i was hoping it wouldn't be as bad as it was but um i can tell you we have enough toilet paper to last well i'm glad you're prepared but you can all we also can uh be assured that we're prepared for uh hurricane season but this uh it's been a pleasure talking with you natalie and thank you very much for appearing today uh this is much more on medicine on the think tech live streaming series and please um enjoy future shows i'll be talking to family counselor welter david disney in two weeks on wednesday at three o'clock and we'll be talking about uh uh various issues and dealing with the emotional challenges of stay at home orders and i thank our producer and our um other and eric who works tirelessly to put this show on um we'll see you next time aloha