A Foster Farms employee enters the facility on W. Belgravia Ave. in Fresno on Aug. 11, 2021. (Beth LaBerge/KQED)
A recent KQED investigation found that Foster Farms provided delayed or incomplete information to health officials, the public and its own employees about the scope and seriousness of COVID-19 outbreaks at its plants in California’s Central Valley.
Since the start of the pandemic, 16 people have died due to complications from the coronavirus, at least 20 were hospitalized and hundreds of workers at the company’s California facilities have been infected. According to a Cal/OSHA inspection file obtained by KQED, Foster Farms “could have known and should have known of the continuing COVID-19 hazards.”
What happened at Foster Farms is only a piece of a larger issue across California: Essential and front-line workers have been hit hardest by workplace outbreaks — and those already struggling with the financial impacts of the pandemic are hit hardest by the incurred costs of dealing with an infection.
And if an employee dies from a work-related COVID-19 infection, their dependents could be eligible for death benefits and burial expenses.
However, just because these benefits are available doesn’t mean they’re easy to get. Some employees who’ve survived COVID-19 have had their claims contested by their employers and workers’ comp insurance companies.
Going through a bureaucratic maze could seem daunting — especially after surviving a case of COVID-19. But it can also open up a financial lifeline for some. Workers can’t sue their employers for a workplace infection. However, they are entitled to medical treatment covered by their employer.
KQED spoke with both experienced workers’ comp attorneys and state officials to better understand what it’s like to go through this process and ways to make it less complicated. Don't have time to read the whole guide? Here's a quick breakdown. Click on the links below to skip to a specific section:
According to attorneys who’ve been managing workers’ comp cases for years, the hardest step in the process can be the first: filing a workers’ comp claim.
“A lot of people just aren't aware that they can even bring these claims to begin with,” said Ricardo Agustín Pérez, a personal injury lawyer based in Southern California who currently represents Alma Ruth Hernández Núñez, surviving spouse of a former Foster Farms employee who lost his life due to COVID-19 complications.
You can also file a claim even if you weren’t hospitalized for COVID-19. Cheryl Wallach, a workers' comp attorney and board member of Worksafe, a worker advocacy group, says that a claim should show that the infection is an industrial injury, meaning it happened at the workplace during the course of employment.
“You just have to show that the employee had an increased risk compared to the general population,” she said. “If you’re in the food service industry or you're working side by side with other workers or … you're not working at home, do you have an increased risk compared to other people?”
Any worker in California, regardless of immigration status or industry, can file a claim. And you don’t need a lawyer to do so.
The first step is to talk to your employer, whether that’s your supervisor or the owner of the business you’re working for, and let them know you tested positive for COVID-19 and that you believe you contracted the virus at your workplace.
Once you let your employer know, they have 24 hours to give you a DWC 1 — a workers’ compensation claim form. You’ll fill out the employee section, which includes sections to describe the injury and when it occurred. Remember, the injury in this case is a COVID-19 infection.
If your employer doesn’t have a DWC 1 or claims to not know what that is, you can find a DWC 1 online. After you fill out your part, give it to your employer, who must provide a copy to their insurer and to the worker within one working day of receiving the form.
Once your employer has sent out the DWC 1 to their insurer, you should receive information from the insurance company on where to receive medical attention — all of which should be billed to your employer. If you need emergency care due to the infection and the insurance company hasn’t reached out, you can see your health care provider immediately.
If you don’t have a health care provider, DIR recommends finding a clinic or hospital that can provide care without immediate payment, as long as they request a reimbursement from your employer’s insurer.
In most instances, the insurance company will connect you with a physician that’s part of a medical provider network (MPN), a group of doctors chosen by the insurance company that are familiar with the workers’ comp process. The MPN doctor will perform an examination to gauge what type of care you need and what benefits you may qualify for.
Ricardo Agustín Pérez, the personal injury lawyer, said that many of his clients are not informed about this by their employers. “I think a lot of employers are not educated on that either, because it's really not in the insurance carrier’s interest to tell their insured,” he said.
However, if the insurer decides that your injury qualifies for workers’ comp — yes, it’s the insurance company that decides — they’ll let you know by mail what medical care will be covered.
It’s important to mention that the scope of these benefits is limited, and disability benefits only cover a fraction of your regular wages.
“Nobody gets rich off workers’ comp,” Wallach said. “No workers’ compensation case is worth losing your job over. The goal is to get better and get back to work.”
My claim was denied. What happens now?
In some cases, your employer’s insurance company may decide it won’t cover your claim. This could happen for a variety of reasons, including that they believe you did not contract COVID-19 at your workplace rather than somewhere else.
This may be a good time to look for legal aid to help you navigate this part of the process. DIR recommends reaching out to the State Bar of California or the California Applicants' Attorneys Association to learn which workers’ comp attorneys are closest to you. If you are a member of a union, they can also provide you with a list of experienced attorneys.
A lawyer can help you build a timeline of events to demonstrate that you did catch the coronavirus at work. Wallach, the workers’ comp attorney, points out that it’s especially helpful when an employee has kept a record of their infection.
“As soon as you first start noticing symptoms that you think you have COVID, go a few days out, you know, four or five days backwards and look and see what you've done,” she said. “Who were you around? Where did you go outside of work?”
These details can become especially relevant if the insurance company claims that you got COVID-19 outside of work.
“The more documentation we have … is going to be helpful in showing that it's a work-related injury,” Wallach explained. “Showing that other people in your family either contracted it after you started having symptoms or didn’t contract it at all will also help tie in that increased risk.”
Something else that could be important is knowing how many other employees at your workplace got COVID-19. According to state law, if at least 4% of the workforce tests positive within a period of 14 days, that’s considered an outbreak.
If an outbreak took place at your workplace, that could be considered a “rebuttable presumption,” and that, in some instances, could make it easier for you to qualify for workers’ comp.
Some additional things to keep in mind
If you’re thinking of going ahead with the workers’ comp process but feel that your English is a bit limited, you can request an interpreter who can provide assistance in the language you feel most comfortable with during visits to the physician or during the arbitration process. The interpreter would be covered by your employer’s insurance company.
As an attorney also fluent in Spanish, Ricardo Agustín Pérez understands the important role that interpreters play in proceedings but also offers a few suggestions.
“It's a very difficult job to be an interpreter,” he explained. “Please be conscious of the fact that this interpreter is translating everything that you say. And if you say a really long sentence, [they have] to remember everything and translate it perfectly.”
“A lot of people think that the workers' comp system is designed to compensate you for your lost wages,” he explained, pointing out that some clients have come to him thinking they can get a big compensation after hearing rumors about somebody else’s workers’ comp process.
“You're only entitled to two years of temporary disability, and it's about two-thirds of your average weekly earnings,” he said.
For specific assistance, including extra guidance on the death benefits process, you can contact the DWC’s Information & Assistance Unit. The primary number is (800) 736-7401.
You can also contact the DWC Bay Area office that's closest to you: