The Coronavirus (COVID-19)—Is It Compensable?

One of the first cases filed is a wrongful death suit against Walmart alleging that the store failed to protect employees from the coronavirus. Toney Evans is the special administrator of the Estate of Wando Evans, Deceased v. Walmart, Inc., and J2M-Evergreen, Case No. 2020L003938, in the Circuit Court of Cook County, Illinois. The cases discussed in the original version continue to provide some insight as to how the courts may treat various compensability arguments. However, unlike the court system where lawsuits move rather slowly, state officials, including governors and legislatures, have rapidly enacted laws to address the compensability of those workers most affected by the pandemic. These new laws demonstrate certain trends among the states. Accordingly, this article is updated to address these trends.

Compensability legislation and orders. The first wave of laws focuses on compensation coverage for first responders and healthcare workers. At least seven state governors have issued executive orders confirming workers compensation coverage for medical personnel and first responders. For example, Governor Asa Hutchinson of Arkansas issued Executive Order 20-19, which suspends several sections of the workers compensation act during the COVID-19 outbreak to provide workers compensation coverage to first responders and frontline healthcare workers. Those workers diagnosed with COVID-19 will still have to prove a causal link between their illness and their occupation. Subsequently, the governor issued Executive Order 20-22, which added Arkansas National Guard soldiers and airmen on state active duty to employments eligible for workers compensation coverage due to COVID-19, and Executive Order 20-35, which modifies several sections of the workers compensation act to extend coverage for workers who contract COVID-19 in the workplace when the worker can prove the causal link between the illness and the employment.

California's governor took another approach by creating a rebuttable presumption that workers who contract COVID-19 while working outside their homes at the direction of their employers did so in the course and scope of employment and are eligible for workers compensation benefits when certain conditions are met in Executive Order N-62-20. (Other executive orders include Kentucky Executive Order 2020-277, New Hampshire Emergency Order #36, New Mexico Executive Order 2020-025, North Dakota Executive Order 2020-12 and Executive Order 2020-12.1, and Washington's governor's news release extending workers compensation benefits.)

Currently, over half of the states have some type of legislation or orders that address the compensability for COVID-19 of first responders and frontline healthcare workers. Although they vary in scope, they are all intended to address a certain class of workers that are either deemed to be compensable or make it easier to prove compensability by virtue of the type of work. For example, Ohio HB571 amends the occupational disease coverage under the workers compensation act to include first responders and medical personnel who contract COVID-19 during the emergency declared by Executive Order 2020-01D. On March 12, 2020, Wisconsin effectively passed a bill, AB1038, that creates the presumption that an injury to a first responder during a specific time frame was caused by the first responder's occupation when corroborated by a COVID-19 positive test or diagnosis.

Many states have proposed laws that create a "rebuttable presumption" that certain classes of workers who contract COVID-19 did so in the course and scope of employment. (Alaska SB 241, Illinois Rule 9030.70 (Arbitration—Rules of Evidence), Kentucky Executive Order 2020-277, Minnesota HF 4537, Missouri 8 CSR 50-5.005, New Jersey A3999 and S2380, North Carolina H1056, and Vermont S.342.) In California, another state that has a widespread outbreak of the virus, currently four legislative bills are pending to address COVID-19 compensability.

• AB-664 would create a "conclusive presumption" that certain classes of workers (firefighters, law officers, hospital employees, and rescue workers, among others) contracting COVID-19 did so in the course and scope of employment when working in an area that is subject to a state or local declaration of a state of emergency due to COVID-19.
• SB-1159 would amend the definition of injury in the workers compensation act to include illness or death that results from COVID-19 exposure under certain specific circumstances and creates a "disputable presumption" that the illness arose out of and in the course of employment. This bill would apply to "critical workers who directly interact or previously directly interacted with the public during the COVID-19 pandemic."
• SB-893 expands the definition of injury in the workers compensation act to include a respiratory disease that develops or manifests itself in a hospital worker while the individual is employed at a hospital. And the definition of respiratory disease in the act includes COVID-19.
• AB-196 extends workers compensation coverage for COVID-19 to workers deemed essential in Governor Gavin Newsom's Executive Order N-33-20 or subsequently deemed essential.

These efforts by governors and state officials have not been without controversy. Partly in response to the governor's disaster declaration, the Illinois Worker's Compensation Commission issued a ruling that any first responder or frontline worker who contracts COVID-19 during the remainder of the disaster declaration will be rebuttably presumed to have done so in a work-related activity. The Illinois Manufacturers' Association and the Illinois Retail Merchants Association filed suit in April 2020, seeking a temporary restraining order to temporarily block the rule so that they can challenge its enforceability. The judge granted the emergency request to block the new rule, which caused the commission to ultimately withdraw it (citing litigation costs as the reason for withdrawal).

Note that, recently, Illinois has enacted legislation (HB2455) that creates the rebuttable presumption that police, firefighters, first responders, frontline workers, and (under certain conditions) essential workers that contract COVID-19 did so in the course and scope of employment and are entitled to benefits under the workers compensation act. Colorado is another jurisdiction where there has been pushback about expanding the scope of compensability under the workers compensation act. SB20-216 was introduced in the Colorado Senate. The bill would create the rebuttable presumption that essential workers working outside their homes who contract COVID-19 did so in the course and scope of employment and are entitled to workers compensation benefits when the illness is diagnosed by a laboratory test or licensed physician or is the cause of death listed by a physician on a death certificate. The bill has been postponed indefinitely by the Senate Committee on Appropriations with the Colorado legislature just about to adjourn.

Almost every state workers compensation administrative organizations have added COVID-19 content dedicated to providing information about the administration of ongoing and new claims during the coronavirus outbreak. When looking for the latest information on how a certain state's workers compensation officials are addressing COVID-19, a review of the state's website can be particularly useful. The National Council on Compensation Insurance (NCCI), which performs the regulation function for many states, has a helpful chart on its website that follows state workers compensation compensability presumptions.

Since the current state of the pandemic remains fluid, we can expect additional laws and rules surrounding compensability to be enacted to address the crisis. In the first wave of legislation, the majority of the states have been most concerned with the compensability of first responders and healthcare workers on the front line. However, there is also a trend to address "essential workers." For example, in Massachusetts, H.4739, presently in a House committee, creates the presumption that, when certain conditions are met, essential workers who contract or are required to quarantine due to COVID-19 did so in the course and scope of employment. Some examples of essential workers in that state are pharmacy and grocery store workers. These workers will likely be more widely addressed in a second wave of legislation.

Pre-COVID-19 Compensability Case Law

As already discussed, a review of existing communicable disease case law can provide valuable insights as to how the courts will view compensability issues and, since the workers compensation system is unique to each of the 51 jurisdictions, the response to the issue of COVID-19 compensability will undoubtedly be varied. Almost all of the jurisdictions have a provision in their respective workers compensation acts requiring that the injury/illness arise out of and in the course of employment. There are other Act provisions that can also play into the compensability decision, such as that the injury/illness must be traceable to a point in time. As the coronavirus becomes widespread in the United States, it will be almost impossible to determine that exact moment an individual became infected and whether it was in the course and scope of employment.

Individuals working in specific industry segments (e.g., medical professionals and those in the service sector) may have an easier time pursuing a workers compensation claim as it can be shown that they were at higher risk in their workplace due to their occupation.

Historically, many communicable disease workers compensation claims have been resolved through litigation. Following are a sampling of pertinent case law. These cases could provide a clue as to how coronavirus workers compensation claims will be resolved. At the outset, it is important to note that the majority of workers compensation cases regarding communicable diseases require a showing of increased exposure to the contagion at work to be compensable.¹

Traveling Employee Dies of Neisseria Meningitidis: Illinois

The case of an executive that contracted Neisseria meningitidis while traveling on business to Brazil is illustrative of the evidence necessary to show the causal connection (and increased exposure) between the disease (infection) and his employment. In Omron Elecs v. Illinois Workers' Comp. Comm'n, 2014 IL App. (1st) 130766WC, 387 Ill. Dec. 74, 21 N.E.3d 1245 (2014), the employee, Craig Bauer, worked for the employer, Omron Electronics, as the company's president and chief operating officer. Mr. Bauer traveled to Japan and China from June 7–14, 2006. He then returned home to Chicago and worked from his office.

He reported having a slight upper respiratory infection at this time. On June 20, 2006, he left Chicago and flew to Brazil. He left Brazil on June 22 and returned to Chicago. Upon his return, he stated he did not feel well. His symptoms dramatically increased over a short period of time, resulting in his death on June 25, 2006. The autopsy showed that he died of meningococcemia (another word for Neisseria meningitidis). 

A person can only contract this infection from another human. The most common transmission is airborne respiratory droplets (from coughing, sneezing, talking, or singing). The incubation period is 2–10 days. International travel increases the risk of contracting the disease, especially travel to Brazil where there is a significant increased prevalence of the disease. Given his travel to Brazil and the timing of his onset of symptoms, the medical experts for the employee's administrator opined that Mr. Bauer contracted the disease in Brazil while on business. However, conflicting medical testimony was offered by the employer, contending that it was impossible to determine exactly when Mr. Bauer contracted the disease, given all of his recent international travel.  

The court noted that the claimant in an occupational disease case has the burden of proving not only that he or she suffers from an occupational disease but also that there is a causal connection between the disease and his or her employment. However, proof of a "direct" causal connection is not required by the Illinois Act. The commission found the opinions of the experts who concluded that the disease was contracted in Brazil to be more persuasive and ruled in favor of compensation. Noting that it is the function of the commission to judge the credibility of the witnesses and weigh the evidence, the court affirmed the commission's ruling of compensability.

Nurse Develops Pseudomonas Aeruginosa: Louisiana

In contrast, in another case, an employee failed to prove that he contracted a Pseudomonas aeruginosa infection during the course and scope of his employment at a hospital. In Dunaway v. Lakeview Reg'l Med. Ctr., 2002-2313, 859 So. 2d 131 (La. App. 1 Cir. 08/06/03), Timothy K. Dunaway worked at the Lakeview Regional Medical Center as a nurse. While off-duty, he was operating his boat when it struck a sandbar resulting in multiple facial and nasal fractures requiring extensive reconstructive surgeries. Because the healing of his wounds was incomplete, an attempt was made to avoid scheduling him with patients with open wounds. Nevertheless, at times, Mr. Dunaway did work "the floor," requiring him to handle IV lines, chest tubes, urinary bladder catheters, and other wound drainage.

Mr. Dunaway developed a bacterial infection in his sinuses, Pseudomonas aeruginosa. Six months later, he underwent an additional surgery and found that he still had the infection. Because of his condition, Mr. Dunaway was unable to return to work. He then sought workers compensation benefits, claiming that he contracted the infection while on the job.

The Office of Worker Compensation (OWC) judge denied the benefits due to Mr. Dunaway's failure to establish with reasonable probability the causal link between his illness and his work-related duties. The OWC judge noted that the claimant's experts were not infectious disease doctors, unlike the expert for the employer. The evidence showed not only that this type of infection can be acquired outside of a hospital setting but also that none of Mr. Dunaway's patients showed signs of the infection. Since the disease can be community-acquired (like the coronavirus) and because Mr. Dunaway could have been exposed to the infection at other times, for instance, during his own surgery and hospital stay, the court affirmed the denial of benefits.

Nurse Contracts Ebola: Texas

The current coronavirus outbreak is reminiscent of the Ebola outbreak in 2014. However, unlike the recent coronavirus outbreak, there were very few persons infected with Ebola in the United States. Thus, tracing the source of the Ebola infection was much easier, as was the case in Texas Health Resources v. Pham, No. 05-15-01283-CV, 2016 Tex. App. LEXIS 8336 (Tex. App.—Dallas Aug. 3, 2016). There, Nina Pham worked as a nurse at Presbyterian Hospital in Dallas. She was part of the medical team that treated Thomas Duncan, who turned out to have Ebola. Ms. Pham then contracted Ebola and, thankfully, survived. She sued Texas Health Resources (THR), the owner of Presbyterian Hospital, which in turn contended that it was her coemployer along with the hospital. In this case, it was clear that Ms. Pham was infected on the job, so she was entitled to workers compensation from her employer, Presbyterian Hospital.

Her contention was that only the hospital was her employer, not THR, and thus she was free to sue THR. Ms. Pham sought a temporary injunction seeking to prevent THR from litigating the coemployer issue in any other forum—such as the Division of Workers Compensation.

In declining to enforce an injunction, the Dallas Court of Appeals held that Ms. Pham's affidavit did not support any of her causes of action since it failed to show that she would not have contracted Ebola had the hospital adopted different policies and procedures, provided different training, or provided her with different personal protective equipment. The court held that these issues were beyond a layperson's common understanding and, therefore, expert testimony was needed to support causation. Since Ms. Pham did not have expert testimony supporting her claims, the court denied the request for injunction, sending the case back to the trial court for further handling. Thereafter, the parties entered into a settlement, so the issue of coemployer status was never fully litigated. 

Lab Tech Dies from Serum Hepatitis: North Carolina

Unlike Ebola, the coronavirus may be much more difficult to trace to a source, even for healthcare workers, if the outbreak is widespread in the area where the employee resides. Nevertheless, healthcare workers are at an increased risk that would factor in favor of compensation. When a person's employment increases the risk of contracting the disease, then the courts are more likely to find compensability. See Booker v. Duke Med. Ctr., 297 N.C. 458, 256 S.E.2d 189 (1979), where a claimant died of serum hepatitis allegedly as a result of working as a lab technician for Duke Medical Center.

Firefighter Develops Valley Fever While Traveling: Washington

First responders may also be at a higher risk. However, many states have very specific statutes on what types of infectious diseases are covered for such professionals. Since the coronavirus is a new disease threat, it is likely not specifically identified under any state statute. Take the case of Gorre v. City of Tacoma, 357 P.3d 625 (Wash. 2015), where a firefighter contracted Valley Fever, which he had acquired while on a business trip in Nevada. Since Valley Fever wasn't one of the enumerated diseases that allowed for a rebuttable presumption that the disease occurred during the course of employment, a firefighter who contracted the disease was required to prove causation. (Note that the majority of cases hold that the unexpected contraction of infectious diseases is an injury by accident—not a disease.)² For a disease like the coronavirus, which may become widespread in the community, proving causation arising out of employment is likely to be quite difficult.

Family Members Contract MRSA: Texas

Family members pose another unique challenge. Do infected family members of an infected employee who contracts the disease in the course of employment also have a compensation claim under the pertinent act? The answer is yes if they can show the necessary nexus between the exposure to the employee and their resulting illness. In one case, Beshears v. Pilgrim's Pride Corp., 954 F. Supp. 2d 500 (N.D. Tex.–Fort Worth 2013), employees of a chicken plant who contracted methicillin-resistant Staphylococcus aureus (MRSA) were found to have contracted the infection while in the course of employment. Those same employees unknowingly carried the infection home on their skin and clothing, thus exposing their families to the disease. There was a direct correlation to the disease contracted by the employees and that contracted by the family members. Therefore, the families' claims were also compensable under the Act.

This case suggests that if a healthcare worker contracts the coronavirus and then infects their family, then the family's claims may be covered under the Act. However, if the family members have been potentially exposed in other ways, then they may not be able to prove the causal connection needed to support a finding of compensability.

Conclusion

Each case of the coronavirus will have to be evaluated independently to determine whether it was contracted during the course of employment based on either newly implemented COVID-19 legislation/regulatory action or judicial precedents in the jurisdiction involved.

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¹ Lex K. Larson, Larson's Workers' Compensation, Desk Edition, § 5.05[2] (Matthew Bender, Rev. Ed).

² Ibid., § 51.03.