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Are Essential Workers Entitled to Workers' Compensation for COVID-19?
Within a matter of weeks, Americans abandoned the familiar intricacies of their everyday routines and braced themselves for a new, not-so-normal: life amid coronavirus (COVID-19). Under the direction of federal, regional and local guidance, non-essential businesses closed their doors, those with the capabilities to do so conducted work remotely and others have been forced into unemployment.
While cities across the nation shuttered, essential workers from doctors to delivery drivers to grocers to construction and utility workers, among others, were instructed to perform their job duties in the field, with precautionary measures in place. But as days in quarantine turn to weeks and the number of positive COVID-19 cases continue to mount, more workers across every essential sector have voiced concerns for their personal health and well-being due to frequent exposure to the general public.
One matter of note is whether they are eligible for workers' compensation benefits if they are exposed to COVID-19 on the job and must be out of work. Even more troubling is contemplating whether or not their families would be entitled to a death benefit if they were to pass away as a result of that exposure.
As of right now, there's no clear answer as to whether essential employees, even those who are on the frontlines of patient treatment, and their surviving families would be entitled to workers' compensation benefits. Guidance specific to COVID-19 exposure and workers' compensation is determined by each state's workers' compensation board, which operates independently of one another with its own rules and regulations.
Workers' compensation claims relating the COVID-19 are likely to be controversial, and many expect workers' compensation insurance companies to fight initial claims relating to on-the-job exposure to the disease. Also, it may be months or years until workers' compensation guidance specific to COVID-19 is established in each state by either the courts, workers' compensation board or legislative intervention.
However, there are laws in some states that determine, in general, whether a claim may be considered an occupational disease or accident under its workers' compensation law. In addition, some states like New York have established precedents for workers' compensation claims relating to viral infections that may be considered in matters pertaining to COVID-19, depending on the facts of each case.
For those states that allow occupational disease claims, each state determines the conditions that may qualify an occupational disease either in its legislated workers' compensation law or separate occupation disease law, while some have made these determinations through court rulings. In New York, it is defined as a disease that is a special hazard of the occupation and is contracted over the course of employment.
Special Hazard of the Occupation
Some states require claimants to demonstrate a direct causal relationship between the worker's occupation and the disease. Other jurisdictions may require the claimant to show that their employment was the proximate cause of the disease.
For example, in the state of New York, there is standing case law to support claims for infectious diseases by those who work as health care providers or in a medical/hospital setting due to special hazard considerations. These precedents involved cases relating to tuberculosis (TB), another highly contagious disease spread by close or direct person-to-person contact.
- The 1949 New York Appellate Division ruling in Lyden v. United Hospital established precedent that those who work in a health care setting—including doctors, nurses and other medical providers—exposed to TB could claim workers' compensation benefits for an occupational disease even if they are unable to point to a specific event that led to their exposure.
- The 1968 New York Appellate Division ruling in Lachowicz v. Albany Medical Center Hospital involved a maintenance worker who contracted TB during the course of his employment repairing equipment in a hospital TB ward. The court ruled that his claim for workers' compensation due to on-the-job exposure to TB qualified as an occupational disease. This standard has been applied in various workers' compensation matters involving non-medical staff who work in healthcare or medical settings, including janitors, aides and others.
There have also been several cases in New York that limit certain occupations from qualifying for workers' compensation benefits under the special hazard consideration for occupational diseases.
- The 1966 New York Appellate Division ruling in Paider v. Park E. Movers found that simply working in close vicinity to TB and people who have the disease was not enough for a truck driver of a moving company to qualify for workers' compensation benefits, nor did contracting the disease from a co-worker satisfy the special hazard consideration.
- In 1948 the New York Court of Appeals reversed an award of worker's compensation benefits in Harman v. Republic Aviation Corp., finding that contracting TB through contact with a fellow bench worker in an aircraft factory was not a special hazard that would qualify as an occupational disease.
- The 1950 New York Court of Appeals ruling in Buckley v. Gallagher Brothers Sand & Gravel Corp. found that a bookkeeper was not eligible for workers' compensation benefits because she contracted TB from a co-worker rather than the occupation itself and, therefore, was not considered an occupational disease.
- The 1957 New York Appellate Division ruling in Longshore v. United Seamen's Service Inc. found that working in a profession that required travel and increased risk of exposure to disease was not enough to satisfy the special hazard consideration for workers' compensation benefits to apply.
Existing precedents established by New York courts relating to the TB epidemic restricted workers' compensation benefits for occupational diseases to those who work in healthcare and medical settings under the special hazard consideration. Historically, taxi drivers, waiters and flight attendants have not been granted eligibility for workers' compensation stemming from occupational diseases such as TB.
Under the discretion of each state's workers' compensation laws, some claimants may be able to file a workers' compensation claim for an accident, regardless of their occupation sector. Similar to occupational diseases, each state establishes its guidelines for what qualifies a condition as an accident. In New York, an accident occurs when there's a clear connection between the condition and specific instance. New York further requires a claimant to prove that a specific event occurred during their employment that led to their exposure and contraction of the disease in order to secure workers' compensation benefits for an accident.
Recently, the Occupational Health and Safety Administration (OSHA) issued guidance that stated that employers in the healthcare and medical settings must report when a worker becomes infected with COVID-19 that likely resulted during the course of employment. However, a majority of employers outside of the healthcare sector do not have to report worker COVID-19 cases to OSHA unless there is "objective evidence" that the transmission was work-related or "the evidence is reasonably available to the employer." With COVID-19 being named a global pandemic by the World Health Organization on March 11, 2020, and, therefore, the likelihood of community transmission of the disease outside of work to be high, it may be very difficult—but not necessarily impossible—for workers in some jurisdictions to point to a singular on-the-job event that caused their infection.
Each state sets its own deadlines to report the accident to the employer in writing and file a workers' compensation claim. For example, in New York, workers must report the incident to their employer within 30 days and can file their claims for workers' compensation benefits within two years from the date of injury. It's important that claimants consider consulting with a workers' compensation attorney who is knowledgeable of their state's rules regarding accident notices and claim filings as soon as possible after an incident occurs.
Filing a Claim Related to COVID-19
Workers who have been exposed to COVID-19 on the job or the surviving family members of those who have passed away as a result of that exposure should consider seeking the guidance of an experienced workers' compensation lawyer who can advise them of their legal rights and remedies under their state's workers' compensation laws.
This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Edward Guldi, Attorney at The Perecman Firm, P.L.L.C., is a distinguished New York lawyer who concentrates his practice on all aspects of workers' compensation and social security disability law for claimants. He has successfully represented thousands of workers' compensation claims before the New York Workers' Compensation Board to a successful resolution. He is also experienced in handling complex and serious legal matters involving injuries, including extensive work on the 9/11 cancer litigation. The Perecman Firm is a full-service personal injury law firm with offices in New York, New York, and Jericho, New York. For more information, visit www.perecman.com.