Compensability in the Age of Coronavirus

COVID-19, the disease caused by the new coronavirus, has been designated a global health emergency and pandemic by the World Health Organization. Originating in Wuhan, China in December 2019, the disease has now spread across the globe and continues to spread throughout the United States.

While a majority of cases we have seen to date are relatively mild in terms of symptoms (i.e. fever, cough, shortness of breath), the disease is quite contagious, has caused a number of deaths globally, and is of higher risk to the elderly and individuals with underlying comorbidities.

The question, then, is what duties employers may have to their employees in relation to the spread of COVID-19. Does an employee who contracts COVID-19 have a workers compensation claim?

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The short answer is, “It depends.” In Illinois at least, the question of compensability comes under the Occupational Diseases Act, which is a supplement to the state’s Workers’ Compensation Act. Missouri, Indiana, Iowa, and many other states across the nation have implemented a similar law to Illinois. Other states, like Kansas, Nebraska, and Wisconsin, incorporate occupational diseases under their respective workers compensation statutes. Under Illinois’ Occupational Diseases Act, an ordinary disease of life comes within the definition of an “occupational disease” as long as it is caused or aggravated by an employment-related risk, and it must “arise out of and in the course of the employment.”

We have seen claims like hepatitis, MERSA, and other viral infections be held compensable in the past. However, employees would need to prove that they contracted the virus from their employment and not the general public, which could, in theory, be more difficult as the virus spreads throughout the general population. In other words, arguably, we are all at an equal risk for contracting COVID-19. In contrast, high-risk employees—health care workers, first responders, and transportation industry workers—may have an easier path toward proving compensability.

Previous Court Rulings on Occupational Diseases

While we have not yet seen how courts will rule on coronavirus cases, we do have examples of how courts have ruled for similar diseases. For example, in Richard Neier v. State of Illinois, Dept. of Mental Health, Howe Development Center, 96 IIC 401 (1996), the Illinois Workers’ Compensation Commission found that the employee’s claim of hepatitis B was compensable. In this case, the claimant worked in a state mental health facility. His duties included direct physical contact with residents, some of whom were known carriers of hepatitis B. While working, he was scratched on his finger by a resident with hepatitis B, and, on a second incident, was exposed to bodily fluids of a resident with hepatitis B.

Eventually, the claimant was diagnosed with and treated for hepatitis B. After trial, the arbitrator found that the claimant’s employment exposed him to a greater risk of contracting hepatitis B than to which the general public is exposed. He did not have a family history of the disease and was exposed to the blood and saliva of hepatitis B-afflicted individuals at work.

The arbitrator further found that, while it was not possible to identify with precision which particular exposure was responsible for the claimant ultimately contracting hepatitis B, the claimant proved by a preponderance of the evidence that the employment conditions caused him to contract the disease. On appeal, the Illinois Workers’ Compensation Commission affirmed the arbitrator’s decision.

In another case, the Illinois Workers’ Compensation Commission denied an employee’s claim that her methicillin-resistant staphylococcus aureus infection (MRSA) arose out of and in the course of her employment. In Betty Smith v. Methodist Medical Center, 10 IWCC 1098 (2010), the claimant worked as a unit secretary in a hospital. Her duties included taking care of orders from doctors and nurses, filing, answering calls, assisting patients with daily needs, and providing blankets to patients. She testified that, in 2008, she noticed her right eye began to swell and was irritated. She saw an ophthalmologist, who obtained a culture of her eye and diagnosed her with MRSA.

At trial, she testified that she handled charts of doctors coming from rooms with patients that suffered from MRSA, and that doctors would use pens at her station after coming out of these rooms. The arbitrator found that the claimant did not prove that her MRSA arose out of and in the course of her employment with the hospital. The arbitrator relied on the testimony of an independent medical examiner retained by the employer, who testified that there were two types of MRSA: one of community origin, and one of hospital origin, and that the claimant suffered from MRSA of community origin.

The arbitrator relied more heavily on this independent examiner, as the physician was able to bolster his opinion with lab tests and outside studies. Additionally, the claimant was unable to pinpoint a specific instance in which she may have contracted MRSA, and both the independent medical examiner and arbitrator found it important that no other employee working with the claimant contracted MRSA. On appeal, the Illinois Workers’ Compensation Commission affirmed the decision of the arbitrator.

As mentioned, many states, such as Iowa and Kansas, use a similar analysis as Illinois for occupational disease-type claims. However, some states, including California, New York, Nebraska, New Jersey, and several others, take a more liberal approach and look toward a “positional-risk”-type analysis when determining compensability.

The courts hold, in a positional-risk state, that the disease or injury arises out of and in the course of the employment if the worker’s employment required the worker to be at the place where the exposure or injury occurred at the time that it occurred. In a positional-risk state, we would expect employees to have a much easier time proving that, “but for the employment,” the employee would not have been exposed to the risk of contracting COVID-19.

Unless a state imposes legislation on COVID-19, an employee filing a workers compensation claim for COVID-19 will still, of course, need to have to provide medical evidence to support the workers compensation claim. Some states are beginning to take measures with respect to COVID-19 and workers compensation.

For example, in Washington, Gov. Jay Inslee directed the state’s Department of Labor and Industries to extend coverage for health care workers and first responders quarantined by a physician or public health officer. Under this action, the department will provide benefits to these workers during the time they are quarantined after being exposed to COVID-19 on the job, and the workers compensation coverage can include “medical testing, cover treatment expenses if a worker becomes ill or injured, and provide time-loss payments for those who cannot work if they are sick or quarantined.” We take this to mean that, even before test results come back for COVID-19, an employer may be required to pay workers compensation benefits during the quarantine period if the health care worker or first responder is quarantined. We do expect that more states will implement similar directives in the coming weeks.

Benefits Paid to Employees

Based on what we know up to this point about COVID-19, a vast majority of cases are relatively mild and do not result in any permanent health problems. Consequently, we would expect that workers compensation benefits paid out to employees with a compensable workers compensation claim for COVID-19 would be limited to medical costs such as primary care physician visits, testing, and medication. Additionally, we would expect payment of lost time from work to include the possible 14-day recommended quarantine period.

It is important to note, however, that in cases where the employee is older or suffers from significant comorbidities, the benefits paid would likely increase as the severity of the condition increases, and may include death benefits in the most severe cases. Additionally, some states have a waiting period for lost-time benefits, meaning that lost-time benefits may not begin until after a specific number of days of disability or exposure. In Illinois, for instance, lost-time benefits do not begin until the fourth day unless the lost time exceeds 14 days, after which lost-time benefits are paid retroactively to the first day of lost time from work.

Limiting Workers Compensation Liability

In this evolving situation, what can employers can do to protect their employees and limit potential workers compensation liability? While the employee does not need to prove negligence on behalf of the employer to have a compensable workers compensation claim, employers can take certain measures to potentially lower the risk of their employees contracting COVID-19 while at work. However, it is important to remember that the employee only needs to prove that the disease arose out of and in the course of his employment. Consequently, even if employers take all possible measures to limit the risk of COVID-19, the employee can still prove a claim.

Employers should consider notifying employees of best practices in order to identify possible COVID-19 symptoms as well as ways to assist in combating the spread of the disease. The Centers for Disease Control and Prevention identifies symptoms of COVID-19 to include fever, cough, and shortness of breath. In terms of best practices to prevent illness and combat the spread, employers should consider informing their employees of the CDC’s recommendations, which include avoiding contact with those who are sick; avoid touching the eyes, nose, and mouth; staying at home when sick; washing hands frequently; and cleaning and disinfecting frequently touched objects such as telephones, keyboards, door knobs, and desks. Additionally, employers should strongly consider allowing their employees to work from home while the U.S. continues to try and bring COVID-19 under control.

Additionally, workers compensation in most states extends to work-related travel. Therefore, if an employee contracts COVID-19 while traveling for business and can prove that, at a minimum, they were exposed to COVID-19 while traveling for work, the employee may have a compensable claim. While an employer cannot outright ban personal travel, employers should consider restricting non-essential travel and travel to high-risk areas, including conferences and in-person meetings with large groups, currently defined as 10 or more people.

Furthermore, if an employee has traveled to high-risk areas of the world, such as East Asia, Europe, and certain areas of the United States, employers should consider informing the employee to remain away from the workplace and undergo a self-quarantine for 14 days. Employers should consult with their respective human resource and legal teams on what specific actions they can take in each state and what benefits outside of workers compensation an employee may be entitled to while off due to a quarantine.

To prepare for the likely increase in workers compensation claims associated with COVID-19, employers need to take proactive measures to protect their employees, continue to communicate with their employees, and be proactive in implementing measures to minimize potential workers compensation claims. As this situation continues to develop, employers should continue to consult with their human resource and legal counsel in order to amend their best practices as necessary.