Will the compensability of infectious disease as a personal injury or inherent in the workforce be broadened or expanded as a result of the pandemic?
Since the various workers' compensation statutes restrict but do not eliminate the compensability of infectious disease exposure, workers' compensation judges must determine its compensability. This leaves open the possibility of a broadening or expansion of the scope of coverage to include some non-healthcare workers during the pandemic.
As noted in some of our previous COVID-19 blasts, all of the New England states have provisions in their respective workers’ compensation acts that allow for recovery of benefits for infectious or occupational diseases, albeit with varying definitions and evidentiary standards amongst the states. Each state has some statute or standard that limits compensability for infectious or “occupational” disease to those diseases which are “peculiar,” “characteristic,” or “inherent” in the employment. We have reviewed the standard specific to each state in our earlier email blasts, please refer back to those blasts for the specific wording for your state.
Regardless of the particular wording, the common theme in each of the standards is the distinctive relation of the particular disease to the nature of the employment as opposed to diseases which are just as easily contracted in everyday life. The disease need not be
to the employment, but there must be a measurable increase in the risk of contraction due to the nature of the job.
The question which we foresee becoming a significant issue in potential COVID-19 claims is the expansion of the industries or employments in which contraction of this virus is “inherent.”
The initial reaction to such a question is that COVID-19 is extremely transmissible and can be easily contracted in everyday life outside of work, so it should not be considered “inherent” in any employments outside of the healthcare field. However, as we all know, everyday life during this pandemic is very different than everyday life pre-pandemic. The general public is under stay-at-home orders/advisories in all of the New England states. Since the probability of contracting the virus in everyday life is greatly reduced while under a stay-at-home order, we anticipate that employees who are forced to work despite stay-at-home orders will try to argue that contraction of the virus is now “inherent” in their employment since they must venture outside of the home solely due to work.
Our primary argument against these claims will be that the healthcare industry remains the only employment in which contraction of the virus is “inherent.” Prior case law supports this position in the context of contagious diseases, and the only way to expand that interpretation is through new case law or legislation. To combat claims against non-healthcare-employers, we will need to do a thorough investigation into the facts and circumstances of the employment. This would include reviewing the exact job and job duties, whether the employee can prove actual contact with an infected individual at work, whether the employee had close contact with customers or the general public, whether the employment is tangentially related to healthcare or other essential services, etc.
The COVID-19 pandemic has raised many complex and novel issues in the workers’ compensation realm. Our general advice remains that you deny any initial claims for benefits involving COVID-19 and conduct a thorough investigation into the nature of the employment and the alleged exposure to the virus. Each claim must be analyzed on a case-by-case basis, and our attorneys are ready to review any claim that you receive.
Therefore, before deciding to accept or deny a COVID-19 claim:
- Determine if contracting COVID-19 is a risk inherent in the workplace (differs by state)
- Determine the actual probability the exposure occurred while in the course of that employment
- Determine if this is an actual impairment/disability as a result of the exposure
- Determine if the disease was a "major cause" of any subsequent worsening or death caused by the infection for individuals with pre-existing personal conditions in Massachusetts, or by applying different causation standards in other states for individuals with pre-existing personal impairments.