When Is COVID-19 Work Related?

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In workers' compensation, the term "injury" is broadly defined to include "any injury or disease arising out of the employment" (Labor Code § 3208). So a disease like COVID-19 can be a work-related injury under some circumstances.

Under what circumstances can a disease be considered work related and compensable? Pursuant to § 3600(a), employers are liable for an injury "arising out of and in the course of employment ...." The circumstance commonly is abbreviated AOE/COE. An injured employee has the burden of proving injury AOE/COE. The applicable legal standards are discussed in depth in the next several sections. They are subtle, complex and in many areas unsettled as a matter of law.

An employee has multiple avenues for attempting to establish that he or she contracted the coronavirus at work, including the argument that the work subjected him or her to the risk of catching it. Even if the employee cannot establish that the virus was industrially contracted, the disease could aggravate an industrial condition, leaving the employer liable for the employee's death or increased disability. Employers could be liable for other injuries related to the COVID-19 crisis — claims of psychological injury come to mind. Work from home, travel and other measures adopted in response to COVID-19 could open employers to liability for a workers' compensation claim. We discuss the long list of complex issues in depth here.

OCCUPATIONAL VERSUS NONOCCUPATIONAL DISEASES

COVID-19 is caused by a virus, commonly called the coronavirus, and you don't see many flu-like viruses claimed in workers' compensation. They are called "nonoccupational diseases," and generally are not covered by workers' compensation.

Normally, workers don't pursue workers' compensation claims for nonindustrial diseases. When an employee suffers from the common cold or flu, the symptoms usually are minor. The employee doesn't require professional medical care, and recovers after a few days of rest. Employees often use sick days for nonoccupational diseases because there's no real incentive to pursue a workers' compensation claim.

COVID-19, in contrast, is a minefield for an employer in terms of workers' compensation liability. It's a much more devastating disease, and more lethal than the common flu. Although the vast majority of people who contract the disease will survive, many survivors require hospitalization and emergency medical care. And even if a COVID-19 patient does not require professional medical care, current state and federal guidelines preclude him or her from returning to work with the disease. So employees who contract COVID-19 have a far greater incentive to pursue a workers' compensation claim because it could result in extended time off work, expensive medical bills and in the worst cases, death.

As discussed in "Sullivan on Comp" Section 5.9 Occupational Disease, the law distinguishes between occupational diseases and nonoccupational diseases. The Labor Code does not define the term "occupational disease," but it has been defined by the courts as "one which results from the nature of employment ... [and is] a natural incident of a particular occupation as distinguished from and exceeding the hazard and risks of ordinary employment." For example, silicosis and asbestosis generally are considered occupational diseases because they are more common in particular occupations.

Conversely, in LaTourette v. Workers' Comp. Appeals Bd., the California Supreme Court explained that a nonoccupational disease is "one that is not contracted solely because of an exposure at work or because it is related to a particular type of work." COVID-19 would be considered a nonoccupational disease because it can be contracted anywhere and is not linked to any particular type of work. Generally, nonoccupational diseases do not arise out of the employment and are not compensable.

In LaTourette, the Supreme Court noted that a causal connection is not established just because an employee contracts a disease while employed or becomes disabled from a nonindustrial disease during the employment. It explained, "The narrower rule applicable to infectious diseases arises from the obvious problems of determining causation when the source of injury is of uncertain etiology, the product of invisible and often widespread viral, bacterial, or other pathological organisms. The potentially high costs of avoidance and treatment for infectious diseases, coupled with the fact that such illnesses often cannot be shown with certainty to have resulted from exposure in the workplace, also explain the different line-drawing by our courts in the area of nonoccupational disease."

LaTourette, however, noted two principal exceptions to the general rule of noncompensability for nonoccupational disease:

1. if the employment subjects the employee to an increased risk compared with that of the general public; and
2. if the immediate cause of the injury is an intervening human agency or instrumentality of the employment.

If either of these exceptions is established, the nonoccupational disease would be treated as an occupational disease for which an employer would be liable. These exceptions will be discussed in the upcoming sections.

EMPLOYEE MUST CONTRACT COVID-19 TO BRING A CLAIM

Since the initial outbreak, many employees have been sent home when they are sick regardless of whether they test positive for the coronavirus. Some employees can work from home (and get paid), but others cannot. Regardless, employers are not required to provide workers’ compensation benefits to an employee just because he or she is sent home — the employee must prove industrial injury; that is, prove that he or she contracted COVID-19 on an industrial basis.

An injury must be "compensable" for an injured worker to receive benefits. An injury is compensable if it causes "disability or the need for medical treatment" (LC 3208.1). This concept is discussed in depth in "Sullivan On Comp" Section 5.1 Injury –– Defined.

For example, in one case, the appeals board held that a nurse who was exposed to chicken pox at work was not entitled to workers' compensation benefits. After being exposed, she was sent home on the possibility that she might be infectious. She did not contract chicken pox as a result of her work exposure, and the appeals board explained that a prophylactic layoff does not constitute an injury within the meaning of the Labor Code, and that § 3208.1(a) does not suggest that an injury can occur absent some form of pathology.

Accordingly, an employer is not obligated to pay workers' compensation benefits for an employee who possibly was exposed to the coronavirus at work. The employee must establish he or she contracted COVID-19 at work, and that the disease caused "disability or the need for medical treatment." Given that testing is not widely available for COVID-19, it is possible that some people who contracted the disease may not be able to establish a compensable injury.

PRESUMPTION IN FAVOR OF PEACE OFFICERS AND HEALTH-CARE EMPLOYEES

As discussed in "Sullivan on Comp" Section 5.17 Presumption of Injury –– Public Employee in General and Section 5.18 Presumption of Injury –– Public Employee's Covered Condition, the Labor Code contains several presumptions in favor of certain employees. The purpose of these statutes "is to favor a special class of employees whose service is vital to the public interest and whose strenuous work makes them especially vulnerable."

During the COVID-19 outbreak, employees deemed to be essential may continue working while nonessential workers are required to stay home. Legislative efforts have been introduced to create a COVID-19 presumption for certain workers who have been significantly affected by the outbreak. Specifically, an amendment to Assembly Bill 664 has been introduced to cover firefighters, peace officers and health-care employees.

The amendment would create a presumption in favor of the specified workers who are exposed to or contract a communicable disease, including COVID-19. The term "injury" also would include direction to enter quarantine by a health-care professional, public agency or the employer. So, although a compensable injury normally is required for workers' compensation benefits, the bill would authorize benefits simply because covered workers are quarantined as a result of exposure, even if they don't contract COVID-19. The presumption would apply to a communicable disease on or after Jan. 1, 2020.

The proposal covers normal workers' compensation benefits including hospital, surgical, medical treatment, disability indemnity and death benefits. It also includes benefits that normally may not be covered. Specifically, it would reimburse for personal protective equipment and "reasonable medical expenses for the protection from or treatment of the injury." It's unclear exactly what that means, but it appears to include preventive medicine. Also covered would be reasonable living expenses, other than temporary housing, that exceed the living expenses usually incurred by the person that are a direct result of the injury. A person is not required to have entered quarantine in order to be reimbursed for such expenses. If quarantined, the employee also must be reimbursed for reasonable temporary housing costs.

The proposed presumption would be conclusive. Once the required conditions are established, it would not be rebuttable by any evidence. Furthermore, the presumption would extend for 90 days following termination of service, commencing with the last date actually worked in the specified capacity.

The intent of the amendments to the bill is clear –– "to fully compensate the peace officers, firefighters, and health care employees whose lives are placed at risk when they are exposed to or contract COVID-19 or other communicable diseases in the course of performing their duties." The language further specifies that the covered employees should not be required to use their accrued vacation leave, personal leave, compensatory leave, sick leave or any other leave.

The proposed bill would also amend Labor Code § 4663(e) to include the COVID-19 presumption as one to which apportionment under that statute would not apply. So, even if an employee has a pre-existing lung condition, such as one caused by a smoking habit, if the COVID-19 causes any permanent impairment, the employee would be entitled to the full value of permanent disability without apportionment.

The proposed bill has not been passed by the Legislature. It's likely that other bills will be introduced to cover other essential workers, such as grocery and mass transit workers. In the meantime, the debate rages on over the prudence of this bill. The WCIRB has created a page for COVID-19 that, among other things, reports on the prospective cost of the presumption. It's found at https://www.wcirb.com/covid-19. A recent webinar and report (which acknowledged some huge assumptions) estimated about a 60% increase in costs to the system should the presumption be adopted.

SEE ALSO

• State and Local Workplace Safety Orders
• City and County Orders Applicable to Large Employers
• Employment and Labor Introduction
• Injuries at Home or Due to the Home Office

REFERENCES

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