When workers compensation insurance was first conceived over 100 years ago, it
was designed to cover traumatic injuries in an industrial setting. As workers
compensation evolved, that coverage expanded in many ways.
It was recognized that there were certain diseases or conditions, like
asbestosis and black lung disease, to which workers in certain occupations were
exposed and the general public was not similarly exposed. The cause of these
occupational diseases was not a sudden traumatic exposure but instead resulted
from exposure over time and often took several years before the disease
manifested itself. The traditional workers compensation system was not set up
for such conditions, so most states eventually passed occupational disease
statutes as part of their workers compensation laws.
Infectious Diseases
Infectious diseases were never considered occupational diseases. However,
despite this, most states will cover infectious diseases under workers
compensation if the worker can show all of the following.
- They contracted the disease.
- They were exposed to the disease in the workplace.
- Their risk of catching the disease at work is greater than the general
public.
All of this leads us to the events of 2020 with the COVID-19 pandemic.
Although thousands of workers compensation claims were paid under the existing
standard previously mentioned, several states passed presumption laws, assuming
that workers in certain occupations contracted COVID-19 in the workplace. These
presumptions changed the burden of proof for covered employees so that workers
no longer had to prove they had a greater risk of catching the disease than the
general public.
Classifying COVID-19 as an Occupational Disease
A troubling legislative trend is emerging in 2021 that takes this one step
further. Several states are considering legislation or regulatory action that
will classify COVID-19 as an occupational disease under their statutes. This
consideration is alarming for many reasons.
First and foremost, COVID-19 is NOT an occupational disease. Millions of
people worldwide contracted the disease, most of whom did not catch it in the
workplace. An occupational disease, by definition, is particular to the risks
of the occupation. That is not the case with COVID-19.
Will this open the door for future infectious diseases to be covered under
workers compensation insurance? The flu of 1918 never went away; it lives on in
a mutated form necessitating annual vaccinations. The COVID-19 virus will
likely undergo similar mutations that could also necessitate annual
vaccinations. Will all respiratory viruses be considered an occupational
disease in the future?
Additionally, by making COVID-19 a named occupational disease, are
policymakers creating a de-facto presumption that all COVID-19 is work-related?
Policymakers seem to be using workers compensation insurance to cover some of
the pandemic costs, but workers compensation is not health insurance. There is
no way for employers to run loss control against a global pandemic; there is no
way for underwriters to assess the risks of a worldwide pandemic
accurately.
If we continue to blur the lines between workers compensation and group
health coverage, where does this lead? Cancer and heart disease are already
considered occupational diseases for specific occupations in certain states, as
are hernias and bloodborne diseases. When workers compensation becomes
responsible for common conditions that impact millions of people every year, it
is no longer meeting its designed purpose. It is no longer a grand bargain for
employers when they are being forced to pay claims under workers compensation
that should be the healthcare system's responsibility.