I Think I Got Coronavirus/COVID-19 from Work. Can I File a Workers’ Compensation Claim?
By Hope Echiverri Ranoa, Esq. & Anthony Remo Luna, Esq.
It’s a scary time. And while the world applauds the efforts of essential workers for keeping society afloat while we (hopefully) shelter-in-place, is applause enough when our essential workers contract the virus? Will your employer’s workers’ compensation insurance provide benefits when you need them the most?
The general rule in California is that non-occupational diseases (like the flu or common cold) are non-compensable, without more.
Why? An “non-occupational disease” is a classification of diseases that are readily contracted in everyday life or in other occupations and to which the general public are equally exposed. This is distinct from a special type of occupational disease that is caused by conditions characteristic of a particular occupation, such as coal miners who suffer from black lung disease.
So, while an emergency room (“ER”) nurse may contract the coronavirus from the hospital he/she worked at, so can a person who is sheltering-in-place contact the coronavirus from a mail carrier. In short, we all risk contracting the coronavirus – doctors, nurses, grocery retail workers, and layperson alike. But, is this where the analysis ends? Fortunately, the answer is “no.”
Did my employment cause my illness?
The threshold all California workers’ compensation claims must clear is whether the injury arose out of and in the course of employment (i.e. caused by employment, or AOE/COE). If not, the injury is not industrial, and non-compensable.
But, determining whether an “airborne” illness (such as coronavirus/COVID-19) arose out of and in the course of the employment is difficult to say. What we now know of the coronavirus is that people who contact the virus may not show symptoms for up to two weeks, if ever at all. This means an infected person could have contracted the virus from anyone with whom that person has interacted in the span of two weeks. A sick worker would have a difficult time determining if they contracted the virus from a customer at work or from a contaminated surface at the laundry mat on their day off.
Arguably, one way to succeed in a workers’ compensation claim is through the “special exposure” exception to the general rule. Essentially, it requires the injured worker to prove by a preponderance of evidence that there was special exposure to a disease/ailment (here, the coronavirus) that caused a materially greater risk of contracting this disease for that person than that taken by the general public. Industrial causation need only be established based on reasonable probability and an applicant is not required to prove industrial connection in exacting detail. This means that, if the employee’s occupation is one that causes an “increased risk,” a “materially greater risk,” or where there is a “higher probability” of the individual contracting the particular disease than the general public, then chances are the employee could fall into the special exposure exception to the general rule and successfully make a claim.
Furthermore, in the case of an employee who contracts the illness from work and doesn’t survive, the decedent’s dependents will also be required to prove causation. However, in this type of claim, the dependents must prove that the late employee’s workplace exposure to the coronavirus merely “contributed” to the decedent’s death, and that should be sufficient to establish the death as compensable. (See South Coast Framing, Inc. v. Workers’ Comp. Appeals Board (2015) 61 Cal.4th 291) Still, keep in mind that proving “contribution” is not “easy,” so one should not underestimate the difficult task of proving such a claim.
Different Occupational Categories of Exposure Risk- OSHA provided guidance
The Occupational Safety and Health Administration has prepared a pamphlet titled “Guidance on Preparing Workplaces for COVID-19,” which it published in March 2020, providing persuasive guidance on what could arguably constitute “special exposure” of the coronavirus. The guidance identifies four risk zones – from lower exposure risk to very high exposure risk – based on the likelihood of a worker’s exposure to the coronavirus. A determination that an employee faced “material risk” amounting to “special exposure” could be bolstered by OSHA’s classification of the type of workplace. Although not conclusive, these categories can aid and persuade the finder of fact in making a determination of compensability.
In particular, OSHA’s pamphlet on COVID-19 divides job tasks into four risk exposure levels: very high, high, medium, and lower risk:
I. Very High Exposure Risk
Very high exposure risk jobs are those with high potential for exposure to known or suspected sources of COVID-19 during specific medical, postmortem, or laboratory procedures. Workers in this category include:
Healthcare workers (e.g., doctors, nurses, dentists, paramedics, emergency medical technicians) performing aerosol-generating procedures (e.g., intubation, cough induction procedures, bronchoscopies, some dental procedures and exams, or invasive specimen collection) on known or suspected COVID-19 patients.
Healthcare or laboratory personnel collecting or handling specimens from known or suspected COVID-19 patients (e.g., manipulating cultures from known or suspected COVID-19 patients).
Morgue workers performing autopsies, which generally involve aerosol-generating procedures, on the bodies of people who are known to have, or suspected of having, COVID-19 at the time of their death.
II. High Exposure Risk
High exposure risk jobs are those with high potential for exposure to known or suspected sources of COVID-19. Workers in this category include:
Healthcare delivery and support staff (e.g., doctors, nurses, and other hospital staff who must enter patients’ rooms) exposed to known or suspected COVID-19 patients. (Note: when such workers perform aerosol-generating procedures, their exposure risk level becomes very high.)
Medical transport workers (e.g., ambulance vehicle operators) moving known or suspected COVID-19 patients in enclosed vehicles.
Mortuary workers involved in preparing (e.g., for burial or cremation) the bodies of people who are known to have, or suspected of having, COVID-19 at the time of their death.
III. Medium Exposure Risk
Medium exposure risk jobs include those that require frequent and/or close contact with (i.e., within 6 feet of) people who may be infected with SARS-CoV-2, but who are not known or suspected COVID-19 patients. In areas without ongoing community transmission, workers in this risk group may have frequent contact with travelers who may return from international locations with widespread COVID-19 transmission. In areas where there is ongoing community transmission, workers in this category may have contact with the general public (e.g., schools, high-population-density work environments, some high-volume retail settings).
IV. Lower Exposure Risk (Caution)
Lower exposure risk (caution) jobs are those that do not require contact with people known to be, or suspected of being, infected with SARS-CoV-2 nor frequent close contact with (i.e., within 6 feet of) the general public. Workers in this category have minimal occupational contact with the public and other coworkers.
Still, even if OSHA classifies your workplace as having “medium-exposure risk,” e.g. a grocery store, you may be able to successfully argue that the facts and details surrounding your contamination deemed your risk high. For example, on March 16, 2020, nine Bay Area counties were ordered to shelter in place, effective midnight. That day, Bay Area residents packed grocery stores, some panic-buying, causing stores to become impacted with crowds of people standing in long lines until the stores closed, arguably increasing the risk to grocery workers. That fact-specific scenario could bolster an argument that your “medium-exposure risk” workplace was, on that day, a “high-exposure risk” workplace.
What can I do to prepare to file a claim?
The takeaway here is this: Whether you can successfully file a workers’ compensation claim for having contracted the coronavirus at work requires an in-depth analysis of the specific facts and details of your employment and subsequent illness.
Thus, keeping meticulous records could help you file a successful claim. Consider documenting now, while you’re still healthy, all the specific facts and details surrounding your workplace, the coronavirus, and your health. Did your employer send out a work memo detailing new social distancing procedures aimed at keeping you safe? Were you provided PPE? Is your workplace located in an area deemed a “hot spot?” Remember, these change every day. Also, a video journal or temperature diary might be helpful to show your condition on a daily basis.
Recall also, it may take up to two weeks for symptoms to appear. You may feel fine now, but it may be hard to backtrack once your fever rises. Important areas of consideration that will be used to determine compensability will be the extent of exposure to the disease or disease-causing agents during employment; extent of exposure outside employment; and absence of the disease prior to the work-related exposure as shown by documentation (or lack thereof) in the employee’s medical history. So when documenting in your journal keep these areas of interest in mind.
What benefits can I receive from filing a successful workers’ compensation claim?
There are several benefits available to a workers’ compensation claimant that can become life-lines in these trying times, including temporary disability indemnity, permanent disability indemnity, medical treatment, job retraining benefits, as well as monetary death benefits for your spouse/partner and minor children in cases where beneficiaries lose a loved one to the disease.
If you are considering pursuing a workers’ compensation claim after having contracted the coronavirus at your job, keep in mind most workers compensation attorneys work on contingency and offer free consultations. We are well-equipped to handle these type of claims and are happy to take your call. Contact us now for your free, no obligation consultation.
Legislative/Regulatory Update (as of 6/24/2020)
One of the most salient issues that has arisen in the context of COVID-19 claims surrounds new presumption laws being released by a growing number of states. For example, at least nine states (as of the date of this writing) including California, Washington, North Dakota, Missouri, Kentucky, Illinois, Minnesota, Utah, and Wisconsin, have released executive orders, adopted regulatory changes and/or enacted legislation creating a rebuttable presumption of industrial causation applicable to COVID-19 claims filed by specified workers. Although most jurisdictions have so far limited application of the new presumption to healthcare workers and first responders, some have extended it to all workers deemed “essential.” What this type of presumption essentially means is that workers infected with COVID-19 (who are covered by the presumption according to the legislative/executive mandate) will not be required to prove they contracted the disease at work to receive workers’ compensation benefits. Rather, industrial causation will be presumed (i.e. causation of the illness was caused by or contracted at work) and the burden will shift to the employer and/or insurance carrier to establish that infection occurred outside of work.
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