The Department of Labor, Office of Workers’ Compensation (OWCP), published a bulletin last month regarding changes to how COVID claims will be processed.

You might remember that early in the pandemic, DOL changed the rules to allow COVID claims to be filed on a Form CA-1 and determined that people in high-risk jobs would be assumed to have caught COVID while on duty. Then Congress passed the American Rescue Plan Act (ARPA) in March 2021, which turned that DOL rule into law. The law stated that anyone who contracted COVID from January 27, 2020, through January 27, 2023, would be assumed to have caught it on duty.

Unfortunately, those days are quickly coming to a close – when this special case handling expires on January 27, 2023, COVID will be treated like any other infectious disease.

Anyone who is diagnosed with COVID after January 27, 2023, has two options:

1. Fill out a Form CA-1, but “only if the event alleged to have caused the diagnosed COVID-19 is identifiable as to time and place of occurrence. This must be a specific event or incident or series of events or incidents during a single day or work shift. See 20 CFR §10.5(ee).”
2. Fill out a Form CA-2, which requires an employee first to see a doctor at their own expense, and then have the doctor write a doctor’s note explaining why they believe the employee’s COVID diagnosis is due to an on-duty exposure. The employee would then submit the Form CA-2 with that medical evidence.

So what does this mean for Border Patrol Agents and Support Staff? After January 27, 2023, if an employee tests positive and can unequivocally show that they were exposed to someone at work who tested positive for COVID, they can fill out a Form CA-1. They would need to be able to explain, for example, that they transported an illegal alien for 30 minutes in a vehicle with the windows rolled up on a particular date or they were in an enclosed interview room with a subject who later tested positive. These are just examples, but this is the sort of detailed information they are looking for, along with the other requirements of 20 CFR § 10.115.

They could then use continuation of pay (COP), but it would be up to OWCP to decide if the claim will be accepted. If it’s ultimately not accepted, the employee must convert any COP used to annual leave, sick leave, or leave without pay. Remember, you do not have to wait for DOL to accept a claim to use COP, but if they deny the claim, the COP goes away and has to be replaced with another form of leave.

However, if an employee intends to fill out a Form CA-2, they would have to use sick leave and would not have access to COP.

So this means that if someone tests positive and wants to file a CA-1, it will be on them to try to figure out if they were around someone who tested positive. Most stations are only testing detainees for COVID if they exhibit symptoms, so everyone will have to be more aware of when detainees test positive so CA-1s can be filled out when appropriate. The same goes for employees – if someone tests positive, we can’t trust that the station will do proper contact tracing, so they need to make sure they notify anyone they were around before testing positive.

You can read OWCP’s FECA Bulletin No. 23-02 at this link for more details:

https://www.dol.gov/agencies/owcp/FECA/regs/compliance/DFECfolio/FECABulletins/FY2020-2024#FECAB2302

If you have any issues when this goes into place, please contact Local 2455 OWCP SME Uriel Lopez or any of the members of the Local 2455 Executive Board for assistance.