Workers’ Compensation Expands in Response to COVID-19

Generally, employees who contract an occupational disease are eligible for workers’ compensation benefits if they can show (1) that the illness arose out of the course and scope of their employment; and (2) the illness arose out of or was caused by conditions or hazards unique to their workplace. In contrast, illnesses that are considered “ordinary diseases of life” like the flu or a cold are generally not compensable if the employee was at no greater risk of contracting them through the course of their work than they would be simply as a member of the general public. Similarly, a disease will typically not be compensable through workers’ compensation if it is determined to be a preexisting condition unless some condition or hazard unique to the workplace aggravated the pre-existing condition. Because workers’ compensation is a creature of state law, these general principles may differ somewhat depending on the jurisdiction.

The employee bears the burden of proving each of the elements necessary to establish an entitlement to workers’ compensation benefits, typically by a preponderance of the evidence. Some states utilize different standards of proof that may be more demanding. For example, Connecticut requires a claimant to prove to “a reasonable degree of medical probability” that an illness arose out of and in the course of the employment. In Florida, an occupational disease is not compensable unless medical evidence shows that the nature of the claimant’s employment is a “major contributing cause” of the disease, meaning that it is more than 50% responsible for the illness as compared to all other potential causes of the infection. In Indiana, diseases are not covered if a “rational mind” could conclude that the illness is “equally accessible” outside of the claimant’s employment.

In contrast, other jurisdictions have more relaxed standards of proof. For example, in the District of Columbia, a rebuttable presumption exists that an illness is compensable simply if the employee’s working conditions could have caused the exposure. And, in Massachusetts, compensable occupational diseases include those that arise out of the “nature, conditions, obligations, or incidents of employment … looked at in any of its aspects,” meaning that illness is compensable if the claimant is able to show that some aspect of his or her employment exposed the claimant to the risk of contracting the disease.

A number of states have taken executive action or passed legislation addressing workers’ compensation coverage for employees who contract COVID-19. This is summarized below.

Alaska. A new law creates a rebuttable presumption of a covered occupational disease with respect to first responders and healthcare providers.

California. The California governor issued an Executive Order creating a presumption that an employee’s COVID-19-related illness is compensable if the employee tested positive for, or was diagnosed with, COVID-19 within fourteen days “after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction.” The alleged date of infection must have been between March 19, 2020 and July 5, 2020. Arent Fox has previously covered the Executive Order here.

Illinois. A new law creates a rebuttable presumption of a covered occupational disease with respect to first responders and “front-line” workers, which includes workers at essential businesses identified in the governor’s March 20th Stay at Home Order. For example, the order identifies grocery stores, food and beverage manufacturers, gas stations, banks, hardware stores, and restaurants that serve food for off-premises consumption as essential businesses, among many others.

Kentucky. An Executive Order creates a presumption of a covered occupational disease with respect to healthcare employees, first responders, corrections officers, military, National Guard, domestic violence shelter workers, child advocacy workers, rape crisis center staff, grocery workers, postal service workers, and childcare workers.

Michigan. The Workers’ Disability Compensation Agency issued an emergency rule which creates a presumption that “first response” employees who contract COVID-19 are covered under the workers’ compensation system. The presumption may only be rebutted with “specific facts demonstrating that the first response employee was not exposed to COVID-19 at work. Covered first response employees include any person working in ambulance operations, advanced mobile emergency care services, county medical care facilities, emergency services, emergency medical services, homes for the aged, hospices, hospitals, nursing homes, home health agencies, or any person working as a physician, physician assistant, nurse, EMT, paramedic, respiratory therapist, police officer, firefighter, volunteer civil defense worker, or state or local corrections officer.

Minnesota. A new law creates a rebuttable presumption of a covered occupational disease if the employee tests positive for or is otherwise diagnosed by a health care provider as having COVID-19. Covered employees include peace officers, firefighters, paramedics, nurses or healthcare workers, correctional officers or security counselors, emergency medical technicians, and certain childcare workers.

Missouri. An emergency rule creates a rebuttable presumption of a covered occupational disease with respect to first responders, which includes law enforcement officers, firefighters, and EMTs. The presumption may be rebutted only with clear and convincing evidence that the first responder did not actually have COVID-19 or contracted the disease from exposure that was not related to the individual’s employment.

North Dakota. An Executive Order extends workers’ compensation coverage to first responders, front line health care workers, and funeral service personnel who test positive for COVID-19 and can demonstrate that the infection resulted from a work-related exposure. Frontline health care workers do not include administrative staff who do not come into contact with potentially infectious patients.

Utah. A new law creates a rebuttable presumption of a covered occupational disease with respect to first responders, which includes emergency responders and health care providers. This includes EMS workers, firefighters, and police officers who work on a volunteer or on-call basis. The law could also include non-practitioner employees at health care facilities or clinics.

We are in uncharted territory given the rapidly evolving health crisis and its impact on employers.