OWCP Guidance on Filing for Workplace Anthrax 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. It should be noted that the FECA, 5 U.S.C. 8101 et seq., is applicable to covered employees as defined by statute and regulations.
In some areas Federal and 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 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). See 20 C.F.R. 10.303 and 10.313.
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 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 an injury attributable to this treatment. These employees should be given a CA-2 (unless the treatment was confined to one day).
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