COVID-19: Challenges Presented by Exposure in the Workplace
Exposures to COVID-19 in the workplace will present challenging issues for employers and insurers in the areas of worker's compensation.
We can expect to see claims that will generally fall into three categories:
- Employees who have been exposed to the virus through direct care or contact at work and contract the virus.
- Employees who contract the virus, but they have not provided direct care to or had direct contact with anyone at work who has had the virus.
- Employees who have been exposed to the virus and have been told they must be quarantined although they are not symptomatic.
The simplest case is where employees have been exposed to the virus through direct care or contact at work and contract the virus. There is a direct cause and effect with a resulting disability. These cases will be covered by worker's compensation.
The second case, in which employees contract the virus but have not provided direct care to or had direct contact with anyone who has had the virus, is a bit more complicated.
Historically, there was a distinction drawn between personal injury and germ disease under worker's compensation. The thought was that the mere act of respiration to carry the germs that led to the contraction of the disease was not a personal injury. Smith’s Case, 307 Mass. 516 (1940). By the amendment to G. L. c. 152, Section 1(7A), inserted by St. 1941, c. 437, it was provided 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."
In Hough v. Contributory Retirement Appeal Board, 309 Mass. 534 (1941), the court defined “hazard” as “a danger or risk lurking in a situation which by chance or fortuity develops into an active agency of harm.” If an employee is exposed to an infectious or contagious disease because of the nature of the employment, we must determine whether the likelihood of contagion is “so essentially characteristic of the employment as to warrant a finding that the danger is inherent therein.” Perron’s Case, 325 Mass. 6 (1949).
The employee still has the burden of proving by a preponderance of the evidence that the employee contracted the virus through the course and scope of his or her employment. See Tartas’s Case, 328 Mass. 585 (1952). An employee cannot prevail if the connection is left to “guess, surmise, conjecture or speculation, so that the facts established are equally consistent with no right to compensation and with such a right.” Id. It is not enough that probability somewhat favors the facts that would result in a right to compensation. Id. This hurdle will not be difficult for many healthcare employees to overcome. Given that these employees will have more exposure to the COVID-19 virus due to the nature of their jobs, it is likely that the courts would find that the requisite “hazard” has been established to afford them coverage under Sec. 1(7A). To sustain their burden of proving causation, their medical expert would have to have an understanding that the employee’s job put him or her in contact with the COVID-19. Although the expert may need to rule out other plausible causes (such as exposure at home to someone who was diagnosed with the virus), the expert would not be required to exclude every other possible cause. Young’s Case, 64 Mass. App. Ct. 903 (2005). So, the possibility that the employee may have contracted the virus from a host of other sources (Uber, public transportation, grocery shopping, etc.) would not have to be excluded to establish compensability.
The final scenario, in which employees have been exposed to the virus and have been told they must be quarantined although they are not symptomatic, presents a different issue: how is disability defined? Technically, the employee is not physically disabled from working, so a work from home situation should be readily explored to reduce worker's compensation costs. If the employer is not able to provide work within the work-from-home restriction, and the exposure to the virus was work-related, then worker's compensation benefits may be appropriate as discussed above.
Emotional stress claims may likely be filed as a result of the panic that has been created by this pandemic. Healthcare workers and other employees with more direct exposures to COVID-19 may be more acutely aware of the risks that are being taken each day they come to work. Steps should be taken to help alleviate that stress and to offer employees some respite should they begin to have symptoms resulting from stress. Recognition of their efforts and support for their concerns will go a long way to reducing future worker's compensation claims.
Please feel free to contact Polly Jauquet, who heads the firm’s workers’ compensation practice, at Polly.Jauquet@SmithDuggan.com or 617-228-4463 should you have additional concerns.