By Glenn A. Duhl, Esq.
As a result of the ongoing COVID-19 pandemic, employers have had to grapple with new questions about their obligations to employees and customers. Two of the most common questions are whether COVID-19 is compensable under workers’ compensation laws, and whether business owners are liable to individuals who are exposed to or contract COVID-19 in their place of business. These questions raise new issues that many legislatures and courts have yet to directly consider, with answers varying from state to state.
Workers’ Compensation
COVID-19 may be compensable under Connecticut, New York, Massachusetts, Rhode Island, and New Jersey workers’ compensation laws.
Connecticut
On July 24, 2020, Governor Lamont signed Executive Order No. 7JJJ, which creates a rebuttable presumption that employees who missed a day or more of work between March 10, 2020 and May 20, 2020, inclusive, due to a diagnosis of COVID-19 or due to symptoms that were diagnosed as COVID-19, contracted the virus as an occupational disease arising out of and in the course of employment, provided they meet certain conditions. This presumption may be rebutted only if the employer or insurer demonstrates, by a preponderance of evidence, that the employment of the individual was not the cause of the individual contracting COVID-19.
As the law stands right now, Connecticut employees who are exposed to or contract COVID-19 and miss a day of work after May 20, 2020, may be entitled to workers’ compensation benefits if they can establish a causal connection between the exposure or infection and their employment (i.e., if they can show that the exposure or infection occurred while they were at work).
In Doe v. City of Stamford (Conn. 1997), the Connecticut Supreme Court held that where an employee “concededly has sustained actual exposures to life threatening infectious diseases in incidents that arose out of and occurred in the course of his employment, the claimant has suffered compensable injuries under the act and may recover the expenses associated with reasonable medical testing and treatment.” That court concluded that a police officer’s exposure to two infectious diseases during the course of his duties constituted compensable injuries within the meaning of the Worker’s Compensation Act and reasoned that the officer’s exposure to the diseases could “be definitely located as to time or place, or that they resulted from accidental contact with infected suspects.”
New York
In June 2020, the NY Workers’ Compensation Board issued guidance stating that workers who work in an environment where exposure risks are significantly higher are more likely to have compensable COVID-19 claims (i.e., health care workers, first responders, transportation workers, other workers who directly interact with the public). Employees can demonstrate the significantly elevated risk of exposure in their workplace by showing the nature and extent of their work in an environment where exposure to COVID-19 is prevalent. This includes providing details about where they work, how often they work, and the type of duties they perform. It is recommended that employees provide a report from a medical provider stating their work caused their illness.
In Dongarra v. Village of Ossining (N.Y. App. Div. 1998), a New York appellate court ruled that employees are eligible for workers’ compensation benefits if there is substantial evidence that they were exposed to or contracted an illness that was causally related to their employment. Although the employee’s job as a clerical worker did not increase her risk of exposure, her being employed in an environment where exposure to the disease was high made the illness causally related to her employment.
Massachusetts
Massachusetts’ guidance indicates that workers’ compensation coverage for communicable diseases, such as COVID-19, is limited to where “the hazard of contracting such diseases by an employee is inherent in the employment.” This mirrors the language in Massachusetts’ workers’ compensation law, Mass. Gen. Laws ch. 152, § 1(7A), which provides that “‘Personal injury’ includes infectious or contagious diseases if the nature of the employment is such that the hazard of contracting such diseases by an employee is inherent in the employment.”
Despite this, in Niles-Robinson v. Brigham & Women’s Hosp. (Mass Dist. Ct. 1997; Mass. App. Ct. 1999), the Massachusetts Superior Court suggested that illnesses need not be inherent in employment in order to be compensable for purposes of worker’s compensation, stating that “the plain language of 1(7A) clearly illustrates that the term ‘personal injury’ is not limited to infectious or contagious diseases inherent in employment.” As such, COVID-19 may be compensable even if it is not “inherent in the employment” if an employee can otherwise show they were exposed to or contracted it in the workplace.
Rhode Island
The Rhode Island workers’ compensation law lists specific occupational diseases that are treated as “personal injuries” for purposes of eligibility for workers’ compensation benefits. In the absence of Rhode Island authority indicating that other diseases may constitute a “personal injury,” this list is exclusive.
Rhode Island lawmakers have introduced a bill (H. 8066), which amends the workers’ compensation law’s occupational disease list to include a presumption for COVID-19 compensability for certain occupations. It provides that certain employees (i.e., first responders, medical facility workers, grocery and retail workers, public transportation workers) who contract, have symptoms of, or otherwise become infected with COVID-19 “during the time period in which the state, federal government, or any municipality declared a state of emergency” due to the pandemic, “that results in a period of hospitalization, quarantine, or requires self-quarantine measures as a result of being infected or coming into contact with someone who is infected … shall have their medical condition or incapacity to work presumed to be work-related.” As this bill has yet to be enacted into law, COVID-19 may not be compensable currently under Rhode Island law.
New Jersey
New Jersey guidance indicates that employees who contract COVID-19 because they waited on or worked with someone who had the virus, or contracted the virus for any other work-related reason, could be eligible for workers’ compensation benefits. This also indicates that employees who are directed to self-quarantine by their employer or a public health official following known exposure to the virus during the course of their work could be eligible for workers’ compensation benefits.
To determine eligibility for benefits under New Jersey law, employees must show that their exposure to or contraction of COVID-19 was “causally related to a particular employment.” As indicated by the New Jersey Supreme Court: “To establish causation in an occupational disease case, an employee must satisfy a two-part test by producing evidence to establish both (a) legal causation, and (b) medical causation. … Proof of medical causation means proof that the disability was actually caused by the work-related event. … Proof of legal causation means proof that the injury is work connected.”
Business Owner Liability
Businesses are seeking state or federal protection against potential lawsuits from customers and employees who may be exposed to or contract COVID-19 on business premises.
Workers’ compensation laws may free employers from liability if employees are exposed to or contract COVID-19 in the workplace. This is because COVID-19 may be compensable under workers’ compensation laws and, essentially, all workers’ compensation laws provide that benefits are an exclusive remedy against an employer for injuries arising in the course and scope of employment.
As to business liability for persons not eligible for workers’ compensation benefits, Connecticut, New York, Massachusetts, Rhode Island, and New Jersey have not passed laws or issued executive orders that limit liability from exposure to COVID-19 on business premises. Massachusetts introduced a bill that would grant essential businesses immunity “from suit and civil liability for any damages alleged to have been sustained as a result of alleged exposure to the 2019 novel coronavirus on the premises of such essential business or due to the operations of such essential business; provided, however, that the essential business is providing its services in good faith.” Immunity would not apply “if damages were caused by an act or omission constituting gross negligence or recklessness or conduct with an intent to harm or to discriminate based on race, ethnicity, national origin, religion, disability, sexual orientation, or gender identity by the essential business.”
At the federal level, Senate Republicans have introduced the “Safe To Work Act,” which provides businesses with a presumption of good faith compliance with safety standards and guidelines. The federal bill would further require plaintiffs asserting a “coronavirus exposure action” to prove “by clear and convincing evidence” that the business (1) had failed to make reasonable efforts to comply with applicable laws and guidance, (2) had engaged in “gross negligence or willful misconduct,” and (3) that the plaintiff’s “injury” was actually caused by the plaintiff’s exposure to COVID-19.
Regardless of whether states enact laws providing for immunity, or the Safe To Work Act becomes law, businesses may avoid liability for COVID-19 infections in the workplace through their adoption of policies and procedures that are in compliance with the most up-to-date COVID-19 guidelines and orders that are applicable to their particular workplace (e.g., CDC, OSHA, state and federal DOL, governor executive orders).
Conclusion
Whether COVID-19 is compensable for purposes of workers’ compensation depends on how “injury” and “occupation disease” are defined under a state’s workers’ compensation law, and whether a state has passed legislation or issued an executive order creating a presumption of compensability. Even if a presumption exists, or it is determined that a state’s workers’ compensation law covers COVID-19, a question that remains is whether employees can demonstrate they contracted the disease at work. As COVID-19 is highly contagious and its incubation period makes it difficult to identify where an individual may have been exposed to or contracted the disease, it is difficult to ascertain whether exposure or infection arises out of and occurs in the course of employment. Therefore, employees claiming that COVID-19 exposure or infection is a compensable injury need to establish a causal connection between that exposure or infection and their employment in order to be entitled to workers’ compensation benefits.
As to business owner liability, many states have yet to enact laws or issue executive orders that limit business liability for exposure to or contraction of COVID-19 on business premises. A federal bill on this issue is currently pending, and it will be interesting to see how this bill progresses and if additional legislation is introduced during this election year. For now, the best way for businesses to avoid liability is to adopt of policies and procedures that follow the most up-to-date COVID-19 guidelines and orders from the appropriate government authorities.
Glenn Duhl is a management-side employment and litigation lawyer at Zangari Cohn Cuthbertson Duhl & Grello P.C. Contact: (203) 786-3709; gduhl@zcclawfirm.com; www.zcclawfirm.com.
The information contained in this article is general in nature and offered for informational purposes only. It is not offered and should not be construed as legal advice.