Whether you are an employer or employee, the prospect of contracting the coronavirus (COVID-19) at work leaves many wondering whether this situation can result in a compensable Virginia workers’ compensation claim. At present, there is no definitive answer and it appears that COVID-19 claims will not be compensable except in instances involving healthcare employees and first responders.
COVID-19 As An Occupational Disease?
On March 31, 2020, the World Health Organization declared Coronavirus Disease 2019 (COVID-19) a pandemic. Since that time, life as we know it is different. Certain industries face greater risks in terms of exposure, and even with the best preventative measures in place, there are no guarantees.
As we all adjust to this “new normal” one issue that has arisen in the employment context is whether COVID-19 is an occupational disease for purposes of collecting workers’ compensation benefits. To review, to be compensable under the Virginia Workers’ Compensation Act, an employee must either sustain a work-related injury or contract a disease that arose out of and in the course of employment.
COVID-19 would clearly not qualify as an “injury,” therefore, whether or not benefits can be collected will depend on whether COVID-19 qualifies as an occupational disease.
Under Virginia law, an “occupational disease” is defined as “a disease arising out of and in the course of employment, but not an ordinary disease of life to which the general public is exposed outside of the employment.” Occupational diseases are often the result of continuous exposure to a certain workplace hazard like fumes, mold, bacteria, or any other hazard. There must be a causal connection between your employment and the disease, and the disease must have followed as a natural consequence of your exposure at work. It cannot be a disease that you had substantial exposure outside of employment.
Ordinary Disease of Life
In certain, limited instances, an ordinary disease of life may be treated as an occupational disease if the following elements can be established by clear and convincing evidence (it cannot be a mere probability):
- the disease exists and arose out of and in the course of employment and did not result from causes outside of employment; and
- one of the following: (a) it follows an incident of occupational disease; (b) it is characteristic of the employment and was caused by conditions peculiar to the employment; or (c) it is an infectious or contagious disease contracted in the course of employment in a hospital, lab, or nursing home, or while otherwise engaged in the direct delivery of health care, or in the course of employment as emergency rescue personnel (including volunteers).
In addition to that criteria, Virginia Code § 65.2-402 provides first responders with a presumption that respiratory diseases, hypertension, heart disease, and other medical conditions are compensable, so it appears that claims by healthcare workers and first responders may be compensable. However, for everyone else, it is unlikely that a COVID-19 claim will be compensable since it would be classified as an ordinary disease of life. The burden of proof for an ordinary disease of life claim is much higher (i.e., more difficult) than an ordinary occupational disease claim.
At this time, it is unclear what long-term health effects people will experience if they contract COVID-19. If there are no significant long-term problems, the associated medical costs will be limited.
Challenges to a Successful Claim
The most significant obstacle for employees who pursue a COVID-19 claim will be to establish that they were exposed to COVID-19 at work as opposed to causes outside of employment. The “clear and convincing” standard is a high burden and it may be difficult for a physician to opine (with a reasonable degree of medical certainty) that the infection resulted from a worker’s employment. If the employee was infected when the virus was less prevalent in the general population and they worked in close proximity to infected persons, it would be much easier than if the employee lives in an area where the virus is widespread. Similarly, if an employee was traveling for work and was able to show they contracted the virus while traveling, they may have a case for Virginia workers’ comp benefits.
Workers Who May Have a Higher Likelihood of Prevailing on their Claim
Employees who hold “essential” jobs have an increased likelihood of prevailing on their claims since their jobs require them to be at work and interact with individuals who may have COVID-19. Even if your job is not “essential,” if your employer requires you to come to work your chances of prevailing are higher. The caveat to each of these circumstances is that we could trace your exposure to the virus to your workplace to a reasonable degree of certainty, excluding other sources of exposure (i.e., family, trips to public places or interactions with people outside of work).
Other State Actions to Compensate Workers
Some states are trying to make it easier for certain workers, especially healthcare workers and emergency personnel, to receive workers’ compensation benefits. Some states have used executive branch authority to implement presumption policies for first responders and healthcare workers, placing the burden on the employer to prove the infection was not work-related. In addition, Illinois and Kentucky have provided additional coverage for essential workers like grocery store employees. If you believe you contracted COVID-19 at work, the path to receiving Virginia workers’ compensation benefits may be complicated because you need to show that you contracted the virus at work. The team of Virginia workers’ compensation attorneys at Renfro & Renfro are here during this difficult time to address all of your workers’ comp needs. Contact us today with questions or for a free consultation.