Compensability Of Covid-19 Infections Under Workers’ Compensation Laws
As businesses start to re-open their doors and employees begin to return to their places of employment, many employers are wondering what their responsibilities are under workers’ compensation laws if an employee contracts COVID-19 at work. Is an employee entitled to workers’ compensation benefits if they contract the virus? If an employee contracts COVID-19, does an employer need to file a First Report of Alleged Occupational Injury or Illness? In short…it depends.
Compensability under the Nebraska Workers’ Compensation Act
The Courts liberally construe the Nebraska Workers’ Compensation Act to carry out its beneficent purposes, but the Act is not intended to impose employers with liability for their workers’ general health nor does it require employers to compensate workers who contract ordinary diseases of life that the general public is exposed to, such as a cold or the flu. There are no published opinions in Nebraska addressing the compensability of COVID-19 infections or other similarly contagious illnesses; however, there are foreseeable scenarios where the Court might find an employer liable for compensation for these illnesses.
Under the Nebraska Workers’ Compensation Act, employees are generally entitled to receive workers’ compensation benefits from their employer when they sustain personal injury as the result of either an accident or an occupational disease arising out of and in the course of their employment. Neb. Rev. Stat. § 48-101. If an employee seeks compensation for a COVID-19 infection, they might do so by alleging that they contracted the virus either in an accident or by occupational disease.
i. Accident Theory
Compensable workers’ compensation injuries are most commonly caused by an accident. An “accident” means an unexpected or unforeseen injury happening suddenly and violently, with or without human fault, and producing objective symptoms of an injury. A workers’ compensation claimant must prove that such unexpected or unforeseen injury was in fact caused by the employment. Neb. Rev. Stat. § 48-151(2).
To prove they contracted the virus in an accident, a claimant would need to prove by a preponderance of the evidence that they were exposed to the virus in the course of their employment and that that exposure, rather than any other potential exposure in their daily life, most likely caused their illness. The worker would also need to prove that the accident involved violence to the physical structure of their body and produced at the time objective symptoms of an injury. Ludwick v. TriWest Healthcare All., 267 Neb. 887, 678 N.W.2d 517 (2004). Employees in other states have successfully brought claims for workers’ compensation benefits under an accident theory where they sustained cuts from needles or other sharp objects and contracted a contagious disease as a result. See Sprague v City of Lafayette, 635 So 2d 603 (1994, La App 3d Cir). It is far less likely that a worker could successfully meet this difficult burden of proof in the case of a disease contracted via an airborne virus. Thus, employees who contract COVID-19 from simple contact with customers, venders, or co-workers in the regular course of their employment will not likely be entitled to workers’ compensation benefits under an accident theory.
ii. Occupational Disease Theory
An “occupational disease,” means “only a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment and excludes all ordinary diseases of life to which the general public is exposed.” Neb. Rev. Stat. § 48-151(3). Thus, for a disease to be compensable under the Act, the unique condition of the employment must result in a hazard that distinguishes it in character from employment generally. Jordan v. Morrill Cty., 258 Neb. 380, 603 N.W.2d 411 (1999). In other words, the occupational disease must be a natural circumstance of a particular occupationand result from a hazard specifically attached to that occupation. For instance, exposure to unusual amounts of wheat dust is a hazard peculiar to and characteristic of grain elevator operations; thus, a resulting lung disease is properly classified as an occupational disease. Riggs v. Gooch Milling & Elevator Co., 173 Neb. 70, 112 N.W.2d 531 (1961).
To prove they contracted COVID-19 by occupational disease, a claimant must prove the infection is due to a cause or condition that is characteristic of and peculiar to their particular occupation. The most likely category of worker to successfully bring a COVID-19 claim under the occupational disease statute are first responders or those working in a healthcare setting – more specifically, healthcare professionals working directly to treat COVID-19 patients. Even if a claimant could successfully show the virus was a hazard characteristic of their employment, they would still need to prove that the COVID-19 virus is not an “ordinary disease of life to which the general public is exposed.” Given that nearly five million people have contracted the virus worldwide and the World Health Organization has declared the outbreak a global pandemic, it seems increasingly unlikely that a claimant could prove the virus is not an ordinary disease of life to which the general public is exposed. If a claimant could successfully make this showing, they must still prove the infection arose out of and in the course of employment, rather than through an exposure in their personal life. Thus, most employees who contract COVID-19 at work are not likely to be entitled to workers’ compensation benefits under an occupational disease theory.
What To Do When An Employee Reports They Contracted COVID-19 at Work.
Employers and workers’ compensation insurers in Nebraska are required to file a report of every case of reportable injury arising out of an in the course of employment within 10 days of notice or knowledge of the injury. Neb. Rev. Stat. § 48-144.01. “Reportable injury” means an injury or diagnosed occupational disease that results in death, time away from work, restricted work or termination of employment, loss of consciousness, or medical treatment other than first aid. Accordingly, if an employee reports to you that they contracted COVID-19 due to their employment and must miss work to seek medical treatment or due to forced quarantine, you should consider your obligation to file a First Report of Alleged Occupational Injury or Illness. Failure to file a First Report will toll the statute of limitations on the claim. It is important to note that filing a First Report of Injury does not constitute an admission by the employer that the employee contracted COVID-19 at work.
Additionally, you should immediately report the alleged illness to your workers’ compensation insurance carrier. These cases are very fact dependent and your workers’ compensation insurer will need to undertake an individual analysis of the claim’s compensability.