OWCP guidance on filing
for workplace exposure
Initial guidance by the Office of Workers' Compensation Programs (OWCP) addressed workers' compensation coverage in instances where Federal employees were being tested for possible exposure to anthrax in the workplace. OWCP's policy in these instances has not changed. Employers may provide for testing under the provisions of 5 U.S.C. 7901 or other related legal authority, and are advised not to pursue Federal Employees' Compensation Act (FECA) coverage unless an employee actually tested positive for exposure.
In some areas, Postal employees who have worked in a facility which has possible anthrax contamination are being immediately provided with antibiotic therapy. The antibiotic therapy offered to these individuals is generally of a prophylactic (preventative) nature rather than treatment of an established injury. As such, this treatment does not represent a reimbursable service under FECA (unless the employee has tested positive for anthrax exposure or is diagnosed as having been infected.
Understandably, employees are concerned for their health and may wish to protect any rights to workers' compensation entitlement. Employees who opt to file a claim, but who have not experienced a known injury, should not be discouraged from filing. The employer should hold the CA-1 or CA-2 in the employee's personnel file unless the employee experiences an illness or a positive exposure test requiring non-prophylactic treatment and/or time loss. Only at that point would it be necessary to forward the claim to OWCP for adjudication. Following this guideline will enable OWCP to direct maximum effort toward prompt resolution of claims for actual injuries.
The employee generally has three years from the time of injury to claim wage loss compensation and medical care by filing with their agency. Thus, employees who do not file until such time as they receive a positive test or diagnosis of illness will be covered for effects of exposure at work. For this emergency, OWCP will also consider a CA-1 to be timely filed for Continuation of Pay if it is filed within 30 days of receiving a positive test or diagnosis of illness as due to anthrax exposure at work.
Federal employees with no known anthrax exposure illness, but who have experienced illness as a result of the prophylactic treatment, would generally be covered under FECA. The employee will have the burden to submit medical evidence of any injury attributable to this treatment. These employees should be given a CA-2 (unless the treatment was confined to one day).
Addendum to OWCP Guidance
on Workplace Anthrax Exposure
An employee who signs an informed-consent form has not waived coverage under the FECA for injury or illness that might result from or as a consequence of the prophylactic treatment that OWCP determines is covered under the FECA. Under the FECA and its implementing regulations (20 CFR 10.15), no employer or other person may require an employee to waive the right to FECA compensation and no such waiver of compensation would be valid. In general, signing an informed-consent form for medical treatment is not relevant to FECA coverage, as determinations of FECA coverage are made by OWCP. However, it should be further noted that the liability of the United States for injury or illness to a federal employee who is found covered for benefits under the FECA is exclusive. This means that an employee covered under the FECA may not obtain damages by filing a tort suit, a civil action or other judicial proceeding against the United States. (See Title 5 U.S.C. 8116(c))
20 CFR 10.15 May compensation rights be waived?
No employer or other person may require an employee or other claimant to enter into any agreement, either before or after an injury or death, to waive his or her right to claim compensation under the FECA. No waiver of compensation rights shall be valid.
5 U.S.C. 8116(c)
The liability of the United States or an instrumentality thereof under this subchapter or any extension thereof with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States or the instrumentality to the employee, his legal representative, spouse, dependents, next of kin, and any other person otherwise entitled to recover damages from the United States or the instrumentality because of the injury or death in a direct judicial proceeding, in a civil action, or in admiralty, or by an administrative or judicial proceeding under a workmen's compensation statute or under a Federal tort liability statute. However, this subchapter does not apply to a master or a member of a crew of a vessel.
For more information on anthrax: