The current economic climate created by the COVID-19 pandemic has left many employers and workers’ compensation insurance carriers with valid concerns regarding whether they can expect a deluge of claims brought by workers alleging that they contracted the disease in the course and scope of their employment. Generally, while occupational diseases are covered by most states’ workers’ compensation laws, there is typically a requirement that the occupational disease be unique to the employment. As a result, most employees will not be eligible for worker’s compensation benefits due to the coronavirus, in the same way that they would not be eligible for these benefits if they contracted the flu from a co-worker. That said, health care workers and first responders who are on the front lines of the pandemic inevitably find themselves at a tremendously higher risk for contracting the disease. As a result, in many jurisdictions, these employees may have viable claims for workers’ compensation disability benefits, or, in more unfortunate circumstances, their beneficiaries may have valid claims for death benefits.
What does the law say?
An occupational disease is defined by the Texas Workers' Compensation Act to mean a disease arising out of and in the course of employment that causes damage or harm to the physical structure of the body. An occupational disease specifically does not include an ordinary disease of life to which the general public is exposed outside of employment, except where that disease is related to a compensable injury or occupational disease. If an employee has an injury that is considered to be an ordinary disease of life, he or she is generally not entitled to receive benefits. An illness or injury is considered an ordinary disease of life, and therefore not compensable, when there is no causal connection between the injury and the work, and the disease is not indigenous to the workplace or present at an increased degree with the employment.
Under Louisiana law, workers’ compensation benefits are afforded to those employees who are disabled due to the contraction of an occupational disease. An occupational disease is defined as a disease or illness resulting from “causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.” Compensability therefore hinges on whether the disease originated from conditions in the employment that result in a hazard that distinguishes the employment in character from the general run of occupations.
The law in Texas and Louisiana suggests that the only employees that will have viable claims for workers’ compensation benefits are those who are placed at a higher risk than the general public for contraction of the disease. Detailed compensability analyses should be performed on these cases to assess whether the nature and extent of the employee’s job duties genuinely place them at a higher risk than other employees or the general public. Not all employees performing “essential services” will necessarily be placed at a higher risk.
It remains to be seen how courts will treat coronavirus, in terms of the type of evidence that will be persuasive to demonstrate that a virus that is impacting the nation’s population as a whole is unique to certain employees. While these workers may be at a higher risk for the virus, the disease does not necessarily originate from the conditions of the employment. The prevalence of the virus further calls into question whether the compensability of the disease will be treated differently among employers who take different levels of safety precautions, thereby creating varying levels of risk. For example, if Hospital A provides N95 masks, whereas Hospital B provides only surgical masks, will there be different results for their employees in a workers’ compensation context due to differing levels of risk? The unprecedented nature of COVID-19 makes the answer difficult to predict.
What kind of exposure will these claims bring?
The World Health Organization, using available preliminary data, suggests that the median time from onset to clinical recovery for mild cases of corona virus is approximately 2 weeks, and 3 to 6 weeks for patients with severe or critical cases. Therefore, from the perspective of workers’ compensation claims, if an employer decides to accept the claim as compensable, they can reasonably expect to pay temporary total disability benefits for a period up to roughly 6 weeks. Medical benefits will likely encompass reasonable and necessary treatment to bring the worker to a full recovery. This may include hospital stays, doctor visits, and medication.
While the immediate symptoms of the coronavirus have been well publicized, there is less information regarding the long-term effects of contracting the disease, and whether these workers will sustain any permanent disability as a result. If the employee is able to physically return their pre-injury employment after making a full recovery, there will not likely be any exposure for future wage-loss. It is important to be mindful of whether the employee is unable to return to work because of physically disabling symptoms, versus a lay-off or reduction in force.
It is expected that there will, of course, be significantly higher exposure for death benefits if the injured worker succumbs to the disease. Both Texas and Louisiana’s workers’ compensation laws afford benefits to the beneficiaries of an employee that dies as a result of a work-related injury.
Is there still tort immunity?
Texas and Louisiana both afford certain levels of tort immunity to employers under the exclusive remedy provisions contained in each state’s workers’ compensation laws. Exclusive remedy provisions state that an injured worker’s exclusive remedy if they are injured in the course and scope of employment is in workers’ compensation, and these employees are barred from making tort liability claims against their employers. Workers’ compensation benefits are the sole remedy available to these employees, although there are certain exceptions. A common exception to exclusive remedy provisions is injuries that involve intentional acts by the employer. In Texas, most private employers have the option not to have workers’ compensation insurance. These employers, known as “non-subscribers”, lose some of the legal protections afforded by workers’ compensation insurance, including tort immunity.
Recently, the estate of an Illinois man filed suit for wrongful death and negligence against Walmart, alleging that the store failed to adequately screen and protect its workers. The man was an employee of Walmart, and allegedly contracted the disease while employed there, and died as a result. The lawsuit claims, amongst other things, that the store was not properly cleaned, and employees were not given masks, gloves, or other protective equipment. This suit has put many employers on edge with respect to whether the unique nature of the coronavirus pandemic will strip them of tort immunity typically afforded under workers’ compensation laws. It remains unclear the direction this lawsuit will take. Illinois joins many other states in its adoption of exclusive remedy provisions for workers’ compensation claims. It is predicted that the suit will try and avail itself to exceptions to the exclusive remedy provisions, which vary from state to state. The success of the suit will be dependent upon the plaintiff’s ability to demonstrate that the exclusive remedy provisions are inapplicable, and Walmart is therefore not entitled to tort immunity.
How can I protect my business?
Tort immunity does not relieve employers of their responsibilities to provide a safe work environment for their employees. Employers that are not following the proper guidelines to protect their essential employees during the COVID-19 pandemic are more likely to be found in violation of the Occupational Safety and Health Act of 1970 (“OSHA”) than they are to see tort claims being filed against them. OSHA requires employers to comply with safety and health standards and regulations promulgated by OSHA and requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm.
A key aspect of the Illinois lawsuit against Walmart is the plaintiff’s assertions that Walmart did not follow Center for Disease Control and Prevention (CDC) recommendations, such as implementing infection prevention measures, or enforcing the CDC’s regulations and guidelines to prevent infection. As an employer of essential workers, it is important to be familiar with OSHA’s recommendations concerning the provision of a safe work environment. The United States Department of Labor and the Occupational Safety and Health Administration has published Guidance on Preparing Workplaces for COVID-19, available here. The best way to protect your business during these uncertain times is to rely on these established guidelines to ensure you are taking appropriate and effective measures to protect your workforce.
If you receive a claim for workers’ compensation benefits for occupational disease caused by COVID-19, a detailed factual analysis should be completed before considering whether to accept the claim as compensable. Important factors to consider include whether the worker is considered an essential employee, the nature of the employment and the job duties performed, and the extent of the employment.