Workers Compensation Coverage for COVID-19 Infections
Depending on the state, Workers Compensation does not usually cover “ordinary diseases of life” such as the common cold or flu, in part because it is difficult to determine where one contracted the illness. Although the same is true of COVID-19 during a pandemic, the facts surrounding a COVID-19 exposure, the state, and the occupation will determine whether or not it is compensable through Workers Compensation Insurance. Read my article here about the adverse financial impact to businesses that Workers Comp claims impose.
The good news for employers is that most (not all as you will see below!) COVID-19 cases will not be covered by Workers Compensation Insurance. The bad news is that employees who do not receive Workers Compensation for COVID-19 are able to bring a civil suit to the employer because they are not protected by the Exclusive Remedy Doctrine. This doctrine allows employees to receive compensation for an injury in exchange for giving up their right to bring an employer to court for that injury. Civil suits are more costly to defend and bring higher rewards for negligence and wrongful death.
COVID-19 Coverage Varies by State and Occupation
Some states expanded COVID-19 coverage to employees in certain occupations, such as first responders and medical personnel. This vast expansion of coverage to some groups of workers was catalyzed during a time when essential workers had limited access to consistent protections such as PPE and vaccines. By their proximity to the virus through employment, it was assumed that they likely could have contracted it through work. For state-specific information pertaining to Workers Compensation and Covid-19 see here.
In other circumstances, such as California, the burden of proof is on the employer to show that the employee didn’t get COVID-19 at work regardless of occupation. The intention of this was to address preventable and systemic unsafe work conditions where employers had clusters of workers hospitalized, etc. due to COVID-19.
The Federal Workers Compensation System expanded qualifications for many federal employees who carried out duties that required contact with patients, members of the public, or co-workers, or included a risk of exposure to the novel Coronavirus during a covered period of exposure prior to the diagnosis. They are deemed to have a workplace injury “proximately” caused by employment.
State and Federal Workers Compensation Coverage granted for essential workers are generally limited to a specific time-frame. With more COVID-19 protections in place allowing the country to gravitate toward herd immunity, the financial burden associated with these Workers Compensation cases (often to taxpayers or businesses supporting these systems) is expected to decrease.
Increased COVID-19 Workers Compensation & Civil Litigation Cases
If an employee can prove an employer intentionally injured them or was otherwise negligent in failing to protect the employee from COVID-19, the employer will not be immune from civil lawsuits or additional compensation under Workers Compensation. Thousands of Coronavirus-based lawsuits have been filed from employees and their families. Even though the outcome of many of these lawsuits remain to be seen, we already know employers are relying on their policies, safety protocols and staff training documentation to defend themselves.
There are currently COVID-19-related cases challenging the Exclusive Remedy Doctrine. In one particular case, an employee received Workers Compensation for COVID-19 after her employer was found negligent in providing adequate safeguards. She was simultaneously able to sue her employer for the wrongful death of her husband, who allegedly contracted COVID-19 from her. While this is a unique case that is currently under appeal, there has been a general rise in cases where employees allegedly “take home” COVID-19, resulting in death or illness of a family member. Elements of these cases stand on decades of precedence from asbestos litigation.
In all Workers Compensation and COVID-19 cases pertaining to negligence or death, it will be of utmost importance for the employer to prove that they had adequate protective measures to prevent the spread of the virus, consistent with state and federal health guidelines such as those of OSHA. If employers implement and enforce COVID-19 safety protocols they are more likely to avoid lawsuits, or at the very least, minimize the costs to defend them. Employers should consult with HR professionals, their liability insurance agents and legal counsel to implement proactive policies. Read my article about how to build a defense for Covid-19 litigation here.
©Denise Scotti-Smith 2021. All Rights Reserved.
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