Navigating workers compensation and damage claims based on COVID-19

The coronavirus pandemic has resulted in wide-ranging litigation involving public health, health care, education, criminal justice, commerce, and virtually every aspect of modern life. Employment cases have been brought alleging, among other things, wrongful discharge, disability discrimination, and unhealthful working conditions. Legal actions for compensation or damages for COVID-19 due to workplace exposures are increasingly common and the source of contention and legislation at the state and federal levels. 

Workers’ compensation for occupational illness

Laws enacted in every state except Texas provide workers’ compensation benefits for employees who suffer work-related injury or illness. Although varying by state, the no-fault workers’ compensation system is the “exclusive remedy” for injured or ill employees. Workers need not show negligence or fault on the part of their employer, but they are precluded from bringing lawsuits for damages. According to this “grand bargain,” employees obtain sure, prompt, and reasonable income replacement and medical benefits. Employers benefit by having predictable and limited liability exposure.

Occupational injury claims are relatively easy to resolve because there are a single event and clear causation. Occupational illness claims are more difficult because workers must prove that workplace exposures caused their illness and that it is not an “ordinary disease of life.” Among the key issues: (1) claims often involve illnesses, such as respiratory diseases, that can result from both occupational and non-occupational causes; (2) occupational exposures may aggravate allergies or preexisting conditions; (3) employee behavior, such as cigarette smoking, may exacerbate an occupational illness; and (4) medical experts frequently disagree about causation and severity of the disease.

Some employees, particularly firefighters and police officers, have frequent occupational exposure to various, unidentified gases, vapors, smoke, and particulates. If they later become ill with heart or lung disease, it is difficult to establish whether the disease was caused by workplace exposures or is an “ordinary disease of life.” To relieve the burden from ailing employees who have served the public, 18 states have enacted special “heart and lung” provisions in their workers’ compensation laws that presume coverage for any heart or lung disease suffered by certain classes of workers. These laws have been used as a model for recent COVID-19 legislation. 

Presumptions of eligibility for workers’ compensation for COVID-19 

Because COVID-19 may be acquired in certain hazardous workplaces and also may be considered an “ordinary disease of life,” about one-third of the states have enacted presumptions in favor of workers’ compensation coverage for specific types of employees, these provisions have been adopted through legislation, executive order, or administrative policies. The COVID-19 presumptions are analogous to the heart and lung statutes.

State laws differ on the employees covered by the presumption. Arkansas, Minnesota, New Hampshire, North Dakota, and Utah cover first responders and front-line healthcare workers. Michigan describes in detail the types of health care workers covered by the presumption. Florida’s presumption applies only to state employees and members of the National Guard. Illinois covers all essential workers. New Mexico, Vermont, and Wisconsin also apply the presumption to volunteers. 

States also differ on compensability. Alaska, Arkansas, California, and Connecticut laws apply to all employees who develop COVID-19. In Illinois, the presumption may be rebutted by an employer’s proof of compliance with applicable health and safety practices. Kentucky provides temporary total disability benefits for an employee removed from work by a physician due to occupational exposure to the coronavirus. It thus provides benefits to high-risk workers before they contract COVID-19. Washington also provides benefits to workers during their time of quarantine after exposure.

Workers’ compensation for injuries or illnesses contracted at home

COVID-19 has caused a surge in mostly white-collar employees working from home. Are injuries or illnesses they sustain while working at home compensable? In general, work performed at home for the employer’s benefit and with the approval of the employer are compensable. Some cases, however, are more complicated. 

In Estate of Sullwold v. The Salvation Army, Inc., a financial “portfolio specialist” and comptroller for the Salvation Army, died of a heart attack while exercising on a treadmill at his home in Maine. The Salvation Army permitted him to work remotely from his home after he moved from New York City, which was his employer’s main office. The Supreme Judicial Court of Maine held that the employee’s death, which occurred in the afternoon after the employee had worked since 8:30 AM, arose out of and in the course of employment. The Sullwood decision applied workers’ compensation principles to unusual facts. However, there could be pressure on state legislatures to limit compensation if there are numerous instances of employees receiving compensation for domestic injuries, such as tripping over the family dog.

Another possible source of increased claims is the ubiquitous use of mobile devices, which permit employees to perform services for their employers from numerous locations besides their homes. It is not clear how far workers’ compensation coverage will extend to working beyond the employee’s home, such as a vacation property, boat, or golf cart. More importantly, it is also unclear whether an employee is entitled to workers’ compensation for COVID-19 if the employee becomes infected by a family member or household guest while the employee is working from home.   

Employer liability for COVID-19 of family members of exposed employees 

Some recent cases have involved employers with workplaces containing asbestos, but lacking OSHA-mandated locker room or laundry facilities. Courts have found liability where employees brought home contaminated clothing that caused the illness of family members. In Kesner v. Superior Court, the California Supreme Court held that when employees brought home asbestos-contaminated clothing, it was foreseeable that family members would be exposed. The court stated that the policy consideration of limiting asbestos exposure also favored recognizing a duty running from the employer to the employee’s family members. Although other jurisdictions agree with this holding, Kesner is the minority rule.

Is it possible for the family member of a coronavirus-infected employee, who also becomes ill, to recover from the employer? The “exclusive remedy” rule of workers’ compensation would not apply to the family member’s lawsuit, but recovery would be difficult. There are two main obstacles. First, unlike asbestos cases, which have been brought on a theory of strict products liability, COVID-19 cases would probably be based on negligence, and it might be difficult to prove employer fault. Second, asbestos diseases are caused by specific exposures, but it might be challenging to prove that the employee and not community exposure infected the family member. Another theory, public nuisance law, also has been used in second-hand exposure cases, with the harms to family members serving as the necessary “special injury.” 

Liability limiting legislation

Many states have been criticized for their slowness to act in preventing the spread of COVID-19. Still, the same cannot be said of their efforts to shield businesses from possible coronavirus-based liability claims. Thus far, at least twelve states have enacted liability shield laws that apply to most or all businesses, including health care providers. The laws typically permit recovery only upon a showing of “gross negligence” or “willful misconduct.” These laws limit personal injury lawsuits, but they do not apply to workers’ compensation claims. Several other states are considering similar legislation, and a federal liability limitation bill is at the center of congressional negotiations on new coronavirus relief legislation. 

The long-term effects of the coronavirus pandemic on the economy and working arrangements are difficult to predict. One trend, more employees, working from home, is likely to continue because of reduced office expenses for employers, decreased commuting time for employees, and improvements in virtual workplace technology. It remains to be seen whether workers’ compensation or other laws dealing with workplace injuries and illnesses will evolve to address these new conditions.

Mark A. Rothstein is the Herbert F. Boehl Chair of Law and Medicine and Director of the Institute for Bioethics, Health Policy and Law at the University of Louisville School of Medicine.