The Coronavirus and Shortcomings of Workers’ Comp

Front-line health care workers and other first responders are in the trenches of the battle against the COVID-19 virus. The news is replete with tragic stories of these workers fearing death, making wills, and frantically utilizing extreme social distancing techniques to keep their own families sheltered from exposure to the virus. Should they contract the virus and become unable to work, they may seek workers' compensation coverage, which is the primary benefit system for workers suffering work-related injuries or diseases.

Under workers' compensation, workers are entitled – after a waiting period of seven days or so, depending on the state – to a portion of the wages earned at the time of suffering the work-related injury or illness and payment of reasonably necessary related medical expenses.

Yet, as Bill Smith, president of the Workers' Advocates Law and Injury Group (the largest group of employee-side lawyers in the country) noted in a recent open letter, "Several states deny compensation for 'ordinary diseases of life.' Other states require clear and convincing evidence that the virus was acquired at work as opposed to exposure on the street, in a restaurant, or from a friend or family member. This burden of proof imposes a virtually insurmountable barrier to receiving benefits." In short, workers' compensation is a multistate and multijurisdictional patchwork of statutes that are simultaneously (and somewhat maddeningly) very similar and quite different.

Moreover, workers' compensation covers injuries and illnesses "arising out of" and "in the course of" employment. In other words, coverage depends on work-connectedness, which often operates on two distinct axes – whether an employee suffered injury or illness while performing work in furtherance of the employer's interests, and whether an injury or illness was caused by an "employment risk." States may possess slightly different versions of the work connectedness limitation, but all systems agree in principle that the structure is not and has never been "general health insurance."

As Smith sketched out in his letter, there are at least three significant legal obstacles to coverage of "diseases" in workers' compensation. One major problem centers on the difficulty in separating workplace from non-workplace causes. While an "employment risk" of contracting a disease in the workplace may be medically identifiable, the same risk may also be present outside the workplace. Thus, for example, while a health care worker may have contracted COVID-19 at work, she may also have contracted it on her commute to work. If the standard policing the boundary between "in work" and "out of work" is "clear and convincing," an employee may be hard-pressed to demonstrate that work "clearly and convincingly" increased the risk of being infected with the virus.

Second, as Smith also pointed out, states often exclude "ordinary diseases of life" from workplace coverage. Often the exclusion serves to distinguish "occupational diseases" – such as mesothelioma from on-the-job exposure to asbestos, asthma from workplace exposure to dust or chemical fumes, or anthrax from exposure to wool or infected animal hides – from non-covered ordinary diseases of life and sometimes also from non-covered "infectious" diseases.

A third coverage problem emerges from the requirement, under some workers' compensation statutes, that a covered injury (or disease) result from an "accident," which is often narrowly defined under state law as something like an "unexpected event." States with that type of statute may extend workers' compensation coverage only to diseases that can be traced to a specific unexpected event (the leading workers' compensation treatise speaks of "an invasion of germs"), or perhaps to a discrete, work-related injury (think of an infection caused by a clearly work-related wound).

The discussion so far reveals that COVID-19 could potentially be covered by a state's workers' compensation system, but also that coverage could never be free from doubt given sometimes nebulous workers' compensation causation standards. One obvious solution would be for a state to pass modified workers' compensation legislation specifically addressing COVID coverage. Along those lines, a bill recently passed by the Alaska state Senate provides that a firefighter, emergency medical technician, paramedic, "peace" officer, or health care provider contracting COVID-19 is conclusively presumed to have contracted a covered "occupational" disease if he or she has been diagnosed by a physician as having the virus and the diagnosis is supported by a test or other laboratory findings. The same result could possibly be accomplished by governors' executive orders, but it would not be surprising if the executive branch preferred legislative action in order to fully obviate constitutional concerns.

It seems likely that as additional categories of workers are designated "essential," there will be calls for similar workers' compensation "conclusive presumption" laws applicable to expanded categories of workers. This may cost money in the form of heightened workers' compensation premiums, and many employers won't like it. However, objecting employers should remember that, in addition to this being the right thing to do, workers' compensation coverage of employees insulates employers from negligence suits, something they'd likely find valuable in these volatile times.