Should Health Care Employers Prepare for COVID-19 As A Work-Related Injury?

April 6, 2020 Alerts and Newsletters

While we know that everyone is being bombarded with COVID-19 recommendations, advice, news, and data, another important issue to manage in the workplace is the possibility of COVID-19 infection, if acquired at work and due to the work performed, resulting in a workers’ compensation injury.

Generally, in order for an injury or illness to be work-related, the condition must both “arise out of” and “in the course of” employment. Simply put, the condition must have its source in the employment and not in something else, and be due to the activities or tasks carried out in the employment or immediately attendant thereto. In the context of health care, the ability of an employee to show exposure to COVID-19 in the course of providing medical care will be the driving force behind any claim of work-related illness. The easy example is that of a health care worker who contracts an illness at work, due to caring for patients. More challenging is the situation of a health care provider who contracts COVID-19, but does not know of any contact with an infected patient or co-worker, and yet, has no explanation for how he or she contracted the illness other than possible exposure at work. In that case, the employer should report to its workers’ compensation insurer the assertion by the employee that the illness was contracted at work, due to work, and allow the insurer to take necessary steps to protect the interests of both the employer and the employee.

Most state workers’ compensation statues also include provisions addressing occupational illness. Generally, these provisions were designed to respond to illness tied specifically to some aspect of industry, such as black lung disease in mining, asbestosis in shipbuilding, and the like. It is more likely that COVID-19 would be seen to fall within the regular provisions of the State Act, but it is remotely possible that the workers’ compensation system might view COVID-19 as an occupational injury if the exposure met the required criteria for an occupational injury under the particular statute.

Over the years, there have been successful cases in various jurisdictions establishing a number of diseases found in the general population as work-related illnesses, when the factual evidence demonstrated that the exposure took place at work, due to work. Examples include a lab technician in North Carolina who tested positive for serum hepatitis after testing samples; corrections officers in Connecticut who tested positive for HIV exposure after treating prisoners with the disease in the infirmary; a dental hygienist in Massachusetts who contracted hepatitis C through her work, in the early 1980s, with dental patients before gloving and masking was the standard workplace protection in the dental practice; and the hospital nurse in Maine who tested positive for tuberculosis exposure after treating a patient with that disease for several weeks. A number of jurisdictions around the country have found mold exposure illnesses, as well as “sick building syndrome” to be work-related injuries. The employee needs to only come forward with evidence suggesting a connection to the work to meet his or her initial burden of proof, shifting the burden to the employer to disprove the work connection, no easy feat. Especially in light of the way in which COVID-19 is transmitted, employers will be challenged to disprove occupational exposure unless the employee has extremely close contact outside of work with a COVID-19 infected person prior to developing the condition themselves. Since health care information is generally private, absent a confession by the employee of such a situation, it will be virtually impossible to disprove an assertion of COVID-19 illness due to work as long as the health care provider could have come into contact at work with a patient suffering from the illness.

A prudent employer, therefore, should plan to communicate their commitment to the health and safety of their employees, while at the same time encouraging any employee who suspects that he or she may have contracted COVID-19 through a work exposure to report the illness so that his or her rights under the workers’ compensation system may be fully protected. Be mindful that each case is fact specific, so if in doubt, please contact your legal team to determine the best way to handle the situation.

If you have any questions or concerns regarding the information set out above and how COVID-19 might impact your organization from a HR perspective, please contact Elizabeth Connellan Smith or another member of Verrill’s Employment and Labor Group.

Firm Highlights

News

Verrill Attorney Elizabeth T. Johnston Elected as New Lawyers Section Representative of Maine State Bar Association (MSBA) Board of Governors

Blog

“Mug-shots”: Are Employees’ risky beverage containers a cause for concern?

Prior to (and more so during) the pandemic, many individuals who found themselves working from home were limited in ways to express their uniqueness, their personalities, the things that made them, well, them. It...

Blog

Supreme Leak: Religion at Work

Over the last year, our society has navigated COVID-19 and rules concerning vaccination and masking. As a society and on this blog, we have discussed regularly the role religious freedoms play in the work...

Publication/Podcast

Breaking: OSHA Releases Emergency Temporary Standard for Employers with 100 or More Employees

Publication/Podcast

Federal Vaccine Mandates: How to Respond to Ever-Changing Court Rulings

OSHA’s ETS, CMS’s Mandate, Federal Contractor Mandates, each of these federal vaccine policies have experienced legal challenges over the course of the last two months. On January 11, 2022, Verrill attorney Tawny Alvarez on...

Publication/Podcast

Massachusetts Employers Beware: Any Late Wage Payment Means Liability for Triple Damages

News

Verrill attorney Elizabeth Connellan Smith Elected to the Board of Governors of The College of Workers’ Compensation Lawyers

Publication/Podcast

Labor & Employment Annual Update: Tips and Trends for 2021 and 2022

Blog

Supreme Leak: NLRA Rights

For blog followers, you likely saw last week’s post reminding you to revisit your confidentiality policies in the wake of the leaking of the Supreme Court’s draft opinion in Dobbs v. Jackson Women’s Health...

Blog

News of Supreme Court Leak is a Good Reminder to Revisit Confidentiality Policies

If you have been on social media today (or yesterday) or picked up a newspaper or listened to the radio or watched television—really if you have consumed news in any format, you likely are...

Contact Verrill at (855) 307 0700