The unprecedented spread of COVID-19 has businesses of all sizes struggling to protect healthy employees who remain on the job, and wondering how to help those who have fallen ill as a result of work-related exposure to the disease.
One question on the minds of employers and employees alike is whether workers' compensation benefits are available to those who have contracted the virus in the workplace. The answer depends on a number of factors which we'll discuss below.
Workers’ compensation is a statutory benefit system designed to help employees who incur medical, wage loss, and rehabilitation expenses caused by work-related accidents and diseases. Death benefits are also available for the families of employees who pass away as a result of a work accident or illness.
Every state has its own workers’ compensation system that applies to private employers and their employees. Government employees are protected by a separate federal statute. While some nuances exist between the various schemes, the fundamental principles and policies are similar in all jurisdictions.
Employees who contract an occupational disease or illness are usually eligible for workers' compensation benefits. Generally, the worker must prove that the disease or illness:
In general, an employee is acting in the course and scope of employment when doing something to benefit the employer. A disease is "peculiar" to work when the risk of contracting it from employment is materially greater than the risk posed to the general public. Ordinary diseases of life such as the flu or common cold are not peculiar to employment and are not covered by workers’ compensation.
Example. Charlie, a coal miner in West Virginia, was hospitalized with shortness of breath and eventually diagnosed with black lung disease. Because black lung disease is peculiar to the coal mining industry and rarely affects members of the general public, Charlie’s workers’ compensation claim would probably be successful. The story would be different, however, if Charlie was a lawyer suffering from emphysema, another disease of the lungs. That’s because emphysema is commonly caused by smoking and is not a disease that poses a greater risk to the legal profession than the general public.
Other examples of successful occupational disease claims include workers who developed mesothelioma after being exposed to asbestos on the job, and healthcare providers diagnosed with hepatitis or HIV after treating infected patients.
In order to prevail on your workers' comp claim, you usually must be formally diagnosed with the disease by a medical professional. Merely showing that you were exposed to a disease at work is not enough; you must prove that you actually suffer from the disease.
Not all states have issued a formal directive on workers' compensation claims based on COVID-19. The good news is that those states that have issued guidance are not outright rejecting the idea of covering such claims.
Rather, they typically say that claims "may be covered" or will be considered on a "case-by-case" basis. As a practical matter, this means that COVID-19 claims in these states will probably be handled like regular occupational disease claims. Two of the states that have been hit hardest by the virus, California and New York, seem to fall into this category. So do Idaho, Massachusetts, Minnesota, North Carolina, Texas, and Wisconsin, among others.
A potential problem for workers' comp claimants is that COVID-19 is a pandemic, which means the general public has a significant risk of exposure. This fact will likely make it difficult for the average employee to prevail on a workers’ compensation claim. And as the disease becomes more widespread, it will only get harder to prove that you contracted it at work and that your job presents a unique risk.
Will Peterson, a workers' compensation attorney at Wood, Cooper & Peterson in Neosho, Missouri, is skeptical that many employees in Missouri will prevail on workers' comp claims based on coronavirus. "Even if the claimant could establish successfully that COVID-19 was contracted at work, which seems unlikely, the claimant would still be required to prove that there was something specific about their work that increased their risk of contracting COVID-19," Peterson says. "This is because Missouri law does not compensate individuals just because they are hurt or injured while working. Work has to be the prevailing cause of why the individual contracted COVID-19."
That means, according to Peterson, that "the vast majority of COVID-19 claims will be unsuccessful because the disease is a general hazard to everyone worldwide, irrespective of employment. Individuals are exposed to it both at work and everywhere else."
The outlook is better for those who work in professions that inherently have increased exposure to communicable diseases, such as healthcare workers, first responders, and even some travel industry professionals. The state of Washington, for example, has issued the following guidance:
Under certain circumstances, claims from healthcare providers and first responders involving COVID-19 may be allowed. Other claims that meet certain criteria for exposure will be considered on a case-by-case basis. In most cases, exposure and/or contraction of COVID-19 is not considered to be an allowable, work-related condition.
A statement issued by Kentucky Employers Mutual Insurance (KEMI) is also worth noting. KEMI provides workers’ compensation insurance to Kentucky businesses and has extended wage replacement benefits to first responders and medical personnel quarantined for COVID-19.
In North Dakota, the governor has signed an executive order that protects front line workers in a similar way. South Dakota also appears willing to protect the healthcare industry, but makes a point of distinguishing other types of jobs. The state's guidance states:
[T]he worker must establish COVID-19 is an "occupational disease" which means that exposure to the disease is something that is an essential part of the job (example: doctor or nurse) and not the result of incidental contact from a job that working with the public is expected (example: cashier or waiter).
At this time, New Jersey’s coverage seems to be restricted to health care workers. Likewise, in Ohio coverage is limited to jobs that impose a “special hazard or risk” of contracting COVID-19. Arkansas employees may be covered if “work required them to be exposed to persons infected with COVID-19” but there is likely no coverage for an employee who “incidentally” contracted COVID-19 from a coworker.
Obviously, this list is not exhaustive, but it does illustrate how most states are likely to evaluate workers' comp claims based on COVID-19.
The U.S. Department of Labor has confirmed that the Federal Employee Compensation Act (FECA) applies to federal workers who contract COVID-19 while performing their job duties. This means that benefits are available for federal employees who contract the coronavirus through a work-related exposure. Costs associated with preventative measures such as quarantines, however, are not covered.
While the Department of Labor recognizes that this is an "evolving situation" and encourages government agencies to reach out for guidance on specific claims and coverage issues, it’s important to emphasize that mere exposure to the virus does not constitute a work-related injury. As with any other occupational disease claim, coverage is only afforded to those who are diagnosed with COVID-19 after a positive test result. You must have a medical report from a qualified physician and proof of employment-related exposure to the virus.
In normal times, workers’ compensation is a complex area of the law; COVID-19 only adds to the complexity.
The bottom line is that if you're a healthcare worker, first responder, or otherwise on the front lines of facing the coronavirus outbreak, your workers' comp claim could very well be approved. It's much more difficult, but perhaps not impossible, for those whose jobs don't involve an especially high risk of exposure.
This situation is constantly evolving. Contact an experienced workers' comp attorney for up-to-the-minute information and help with your case.