This post was written by Brad R. Kolling, Attorney, Felhaber and Larson.
Is an employer subject to a workers compensation claim for a work injury if an employee contracts COVID-19 at work?
The first question to address is whether COVID-19 could be considered an occupational illness or disease under a workers’ compensation analysis. Before tackling this, keep in mind that every state has its own workers’ compensation system but there are basic tests that need to be satisfied in determining whether a condition is occupational and therefore covered under workers’ compensation.
There is a two-prong test that needs to be satisfied before any illness or disease, including COVID-19, qualifies as occupational and compensable under workers’ compensation. First, the illness or disease must be occupational, meaning that it arose out of and was in the course and scope of employment. Second, the illness or disease must arise out of or be caused by conditions peculiar to the work.
As to the first prong, the question in most states depends on the employee’s activities; was the employee benefiting the employer when exposed to the illness or disease. With COVID-19 now considered a global pandemic by the World Health Organization, we believe it would be difficult for an employee to show that there was an actual nexus between the disease and work activities.
The second prong of showing that the disease is peculiar to the work appears to be an even higher hurdle to leap over in the case of COVID-19. Under this prong, the illness or disease is peculiar to the work when such a disease is found almost exclusively to workers in a certain field or there is an increased exposure to the illness or disease because of the employee’s working conditions. A common example would be black lung disease which has been found peculiar to coal miners. Asbestosis and other asbestos related illnesses have been found peculiar to certain occupations where there was a history of asbestos exposure.
WHAT ABOUT JOBS IN DIRECT CONTACT WITH COVID-19?
While this is a fluid situation, it is unlikely that COVID-19 itself would be considered an occupational disease. However, there may be circumstances where this illness could be compensable under workers’ compensation. While COVID-19 could be considered an ordinary disease of life which is generally not compensable, if employment peculiarly exposes the employee to an increased risk or special hazard of developing the disease, it may be compensable.
Under the Minnesota workers’ compensation statute, if first responders such as police officers, firefighters, paramedics, emergency medical technicians or a licensed nurse providing emergency medical care contracts an infectious or communicable disease to which an employee was exposed in the course of employment outside of a hospital, it will be presumptively considered an occupational disease and shall be presumed to have been due to the nature of employment. This presumption is however, rebuttable.
COVID-19 itself is likely not an occupational disease and the fact that an employee may contract the virus at work or from a co-worker would not constitute a compensable occupational illness. However, if there is something peculiar about the work that increase the likelihood of contracting COVID-19, an employee may be able to prove a compensable work injury.
The COVID-19 pandemic is a very fluid situation so the ultimate determinations of compensability will depend on the interpretations of workers’ compensation laws in the various states as this issue develops.