The Basic Rule — Increased Risk and the General Public

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THE BASIC RULE: INCREASED RISK COMPARED TO THE GENERAL PUBLIC

An employee may prove industrial causation of the coronavirus by proving the risk of contracting the disease was materially greater than that of the general public or more common at the place of employment than among the public. The most relevant cases to the recent coronavirus outbreak would be two California Supreme Court cases from 1920 related to the Spanish flu, City and County of San Francisco v. IAC (Slattery) and Engels Copper Mining Co. v. IAC (Rebstock). (Note that the California workers' compensation system was only two years old at the time!)

In Slattery, the Supreme Court awarded death benefits to the widow of a hospital steward who died in 1918 of the Spanish flu. The employer argued that the employee did not contract the influenza from his employment because an epidemic of the disease was raging in the city at the time, the disease was highly infectious, it was so general that one in every 10 city residents contracted it and virtually every member of the community was exposed to it.

The Supreme Court found the employee was exposed directly to a considerable number of influenza patients and came down with the disease within the period of incubation after his exposure. It explained that if the epidemic were so severe that the proportion of the general public who were attacked was anything like the proportion in the employee’s class, then it might be too speculative to award benefits. But the evidence established 50 percent to 85 percent of nurses contracted the disease, compared to 10 percent for the community in general. It found this ratio was so great that it was reasonable to conclude the employee's illness was due to the peculiar exposure of his employment.

Similarly, in Rebstock, the Supreme Court held that a safety engineer who contracted the Spanish flu resulting in a heart condition was entitled to an award of benefits. The employee gave up his regular duties at the employer's request for five or six days to care for coworkers suffering from the disease. The employee contracted the disease himself. The employer argued that he acquired it due to the general exposure to which every member of the community was subjected at the time. Again, the Supreme Court found that the employee's chance of contracting the virus was five to eight times as great as the community at large –– he was "exceptionally exposed" and contracted the disease in the course of employment.

This exception has been applied by in other cases. In Bethlehem Steel Co. v. Industrial Acci. Com., the Supreme Court held that ten shipyard workers who contracted a contagious eye disease, kerato-conjunctivitis, were entitled to benefits even though there was a similar epidemic in the city. It found, “The evidence is quite convincing that the disease in the community outside of the shipyards was of much less proportion compared to the population.” It concluded the employees met their burden of proving the risk of contracting the disease by virtue of the employment was materially greater than that of the general public.

Additionally, in Pacific Employers Ins. Co. v. Industrial Acci. Com. (Ehrhardt) the Supreme Court awarded compensation benefits to a traveling salesman who contracted a respiratory illness caused by a mold or fungus that exists in California's San Joaquin Valley and in Arizona, commonly known as San Joaquin Valley fever. Before his employment, the salesman had never been to either region. The court stated, "It was by reason of and incident to his employment that he came in contact with the infection. The risk to which he was subjected by his employment was not the same as that of the public in the endemic area inasmuch as the great majority of the inhabitants there possessed an immunity to the disease which [the employee], living outside the area, lacked." For discussion of other cases, see Sullivan on Comp Section 5.9.

APPLICATION OF INCREASED RISK EXCEPTION TO COVID-19

Given the cases outlined above, many workers who contract the coronavirus will be able bring workers' compensation claims. Governor Newsom's March 19, 2020 executive order requires all California residents to stay home, except for those workers deemed to be essential. By specifying that certain workers should continue working, while requiring all other workers to stay at home, the executive order potentially delineates workers that have increased exposure to the coronavirus. That is, if the general public remains at home, and only essential workers are in the field, they will argue that by definition they are at greater risk than the public. This argument might become of less effect, however, when people start going back to the workplace.

Notably, the list of essential workers includes: (1) health care providers, hospital personnel and workers in medical facilities; (2) law enforcement offices; (3) grocery and pharmacy workers; (4) food manufacturer employees; (5) farm workers; (6) mass transit workers, taxis and truck drivers; (6) postal and shipping workers; (7) workers providing access to banking and lending services; and (8) gas station workers.

Of course, there is not an automatic increased risk just because one does not stay home. In some cases, home could be a more risky environment. Also, the risk of exposure is not the same for all of these employees. Doctors, nurses and other medical professionals who treat COVID-19 patients, will be greatly exposed to the coronavirus. On the other hand, farm workers who don't work with the public and can work in areas where social distancing can be maintained will have less exposure. The former will likely have a greater increased risk than the latter, with most other essential workers falling somewhere in between.

Pursuant to Bethlehem Steel, non-essential workers could also be eligible for workers' compensation benefits if they can prove they had an increased risk. In that case, there was nothing about shipyard workers that made them necessarily more susceptible to kerato-conjunctivitis than other employees. But the Supreme Court still upheld a determination that their exposure was greater than the general population based on the evidence at trial. Likewise, if a large percentage of office employees or factory workers for the same employer contract the coronavirus, the courts may find sufficient evidence of an increased risk compared to the general public.

Furthermore, even without being an essential worker or without proving a material percentage of co-workers contracted the coronavirus, pursuant to Ehrhardt, an employee could assert an increased risk if he/she was required to travel to a location that did cause in an increased risk of exposure. For example, a salesman could meet with hospital officials where COVID-19 patients were treated or could meet in an office building where it was later discovered a significant percentage of the employees contracted the coronavirus.

Accordingly, while employees have the burden of proving that their increased risk was materially greater than that of the general public, they have multiple ways of meeting this burden. The outcome will largely be dependent on the evidence of exposure presented at trial.