As the coronavirus pandemic spreads through nearly every industry on the planet, it goes without saying workers’ compensation is not immune from its impact. Employees engaged in travel, health care, food service, education, janitorial, and public services are, presently, at the greatest risk of contracting the virus. As the number of exposures increase in the general population establishing causation through the workplace will become more challenging.
Generally, for there to be a compensable workers’ compensation claim, there must be an injury or occupational disease that occurs in the course of one’s employment, and that also arises out of that employment. History has taught us that this compensability formula is not as simple as it appears. Applying it to the complexity and nuance of a pandemic will be yet another challenge.
Most likely, contracting the coronavirus will be analyzed as an occupational disease, as case law seems clear that contracting a virus, or even causing a worker to be in an immunocompromised state, does not constitute an injury. Generally, for an occupational disease to be compensable, a claimant must prove the disease was: (1) contracted in the course of employment; (2) that it was peculiar to the employment; and (3) that the employment created a risk of contracting the disease in a greater degree and in a different manner than in the public generally.
Causation would appear to be the most difficult thing to establish in proving a claim. As coronavirus becomes more widespread, the possibility that the exposure occurred outside the workplace becomes greater, and thus proving a specific workplace exposure becomes more difficult.
It is essential in defending such claims that particular attention be paid to the employee’s burden of proving his condition came from an identifiable exposure within the employment.
Questions involving whether the disease was peculiar to the employment or created a greater risk of contracting the virus, have generally involved three employment scenarios. First are health care providers and first responders. Arguably, most of these claims would appear compensable assuming the employee can identify coming into contact with a patient who has the coronavirus. If a first responder or health care provider can specifically identify exposure within the course and scope of their employment, they will likely be able to establish that their employment created a distinguishable hazard of contracting the disease, and a greater risk of contracting the disease than the public generally.
The second employment scenario that raises issues concerning the degree of hazard and risk created by employment involves employees who are required to travel. Again, causation remains the primary issue for such employees. Simply attending a convention, or traveling by air, and subsequently being diagnosed with coronavirus, may not be enough to establish a specific exposure and causation. Also, remember that not everything a person does while on these trips is within the course of the employment. Whether required travel for work creates a distinguishable hazard or greater risk of contracting a disease will be a fact-driven determination made on a case by case basis.
The final scenario that will be addressed is the general office or factory worker who is exposed at work by a co-worker. For the purposes of this analysis, we will assume causation can be established. However, it would appear that general employment in an office or factory would not create a distinguishable hazard of contracting the disease, nor a greater risk of contracting the disease than the public generally.
The pursuit of coronavirus claims under workers’ compensation statutes is inevitable. As with every workers’ compensation claim, these claims will be very fact driven, so it is essential that the facts of each case be investigated thoroughly to determine whether the essential elements have been met.