When Is COVID-19 Work Related?
From Navigating COVID-19
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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 a definition of "occupational illness" is found in Labor Code § 6409. That statute provides that occupational illness "means any abnormal condition or disorder caused by exposure to environmental factors associated with employment, including acute and chronic illnesses or diseases which may be caused by inhalation, absorption, ingestion, or direct contact."
The term "occupational disease" 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:
- if the employment subjects the employee to an increased risk compared with that of the general public; and
- 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."
- State and Local Workplace Safety Orders
- State, County and City Orders Applicable to Large Employers
- Employment and Labor Introduction
- Injuries at Home or Due to the Home Office
- Johnson v. Industrial Acci. Com. (1958) 157 Cal .App. 2d 838, 840.
- (1998) 17 Cal. 4th 644, 653.
- LaTourette v. Workers' Comp. Appeals Bd. (1998) 17 Cal. 4th 644, 654.
- LaTourette v. Workers' Comp. Appeals Bd. (1998) 17 Cal. 4th 644, 654.
- Aromin v. Workers’ Comp. Appeals Bd. (1983) 48 Cal. Comp. Cases 453 (writ denied).
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