During these uncertain times, the Johns Eastern team continues to be a resource to you and your employees for issues relating to workers’ compensation claims. Like you, we are closely monitoring the quickly developing effects of the Coronavirus (COVID-19) pandemic and monitoring guidance from the CDC and local authorities. In fact, many of our clients are on the front lines of this crisis, providing services to our communities and medical care to the sick. Our hope here is to continue to provide general information about some of the considerations different states have when evaluating exposure claims. Below you will find guidance on how COVID-19 claims may be handled in your state.
Florida
In theory, based on the wording of Florida Statute, it would be a rare case that would be determined to be compensable under FS 440.151 (1)(a) which states:
“…the term ‘occupational disease’ shall be construed to mean only a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process or employment, and to exclude all ordinary diseases of life to which the general public is exposed, unless the incidence of the disease is substantially higher in the particular trade, occupation, process, or employment than for the general public. “Occupational disease” means only a disease for which there are epidemiological studies showing that exposure to the specific substance involved, at the levels to which the employee was exposed, may cause the precise disease sustained by the employee.”
Some of you have employees who could fall under the verbiage “peculiar to a particular trade, occupation, process or employment,” like EMTs, first responders, nurses and physicians. As you know, coverage for first responders also falls under Florida Statute 112. Under FS 112.181 and 112.1815, there are provisions for benefits for communicable diseases and exposures for first responders. At this time, COVID-19 is not a covered condition under either of these statutes. However, based on the facts of each case and potential new evidence supporting incidence of the disease being substantially higher for first responders and healthcare workers, there may be evidence supporting a claim for occupational disease. According to OSHA publication 399-03 2020 Guidance on Preparing Workplaces for COVID-19, certain occupations have Very High Exposure Risk and others have High, Medium and Low Exposure Risk. “Very high exposure risk jobs are those with high potential for exposure to known or suspected sources of COVID-19 during specific medical, postmortem, or laboratory procedures.” Even with these OSHA guidelines, an employee will still have the burden of proof, based on a preponderance of the evidence, that they contracted the disease at work. Therefore, a determination of compensability on these claims will need to be made case by case with your involvement, as well as that of your defense attorneys and the Johns Eastern adjusting team.
Georgia
Georgia’s workers’ compensation code has separate provisions pertaining to diseases contracted at work, referred to as “occupational diseases.” The Official Code of Georgia defines an occupational disease as “those diseases which arise out of and in the course of the particular trade, occupation, process, or employment in which the employee is exposed to such disease, provided the employee or the employee’s dependents first prove the satisfaction of the State Board of Workers’ Compensation all of the following:
• A direct causal connection between the conditions under which the work is performed and the disease;
• That the disease followed as a natural incident of exposure by reason of the employment;
• That the disease is not of a character to which the employee may have had substantial exposure outside of the employment;
• That the disease is not an ordinary disease of life to which the general public is exposed;
• That the disease must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence.”
These requirements set a high bar for compensability of claims contending injury due to occupational disease for COVID-19. It will likely be difficult for most employees to show that they had a unique risk to exposure due to their employment versus outside employment. However, we do anticipate that hospital employees may have a stronger claim than most other workers.
North Carolina
Pursuant to section 97-53(13) of the North Carolina Workers’ Compensation Act, to establish compensability, the employee bears the burden of showing that the COVID-19 diagnosis was “due to causes and conditions [that] are characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside of the employment.”
It is an employee’s burden to establish a legally sufficient causal link between the employment and the condition in question to make it an occupational disease. Accordingly, an employee’s COVID-19 diagnosis “must be so distinctly associated with the employee’s occupation that there is a direct causal connection between the duties of the employment and the disease contracted.” The statute lists 28 diseases that are occupational diseases; COVID-19 is not a listed occupational disease.
North Carolina’s occupational disease statute provides coverage only if an employee can satisfy the criteria:
• This specifically excludes from its coverage all ordinary diseases of life to which the general public is equally exposed.
• An Employee’s evidence on causation would have to show that there was something about the nature of the employee’s employment exposed the employee to an “increased risk” of developing COVID-19. (An Employee’s evidence that the employee worked near someone who was diagnosed with COVID-19 is not legally sufficient evidence of “increased risk.”)
It should be anticipated that an employer will have a strong factual and legal basis for denying the compensability of COVID-19 claim. It seems unlikely that an employee will be able to establish / prove causation where COVID -19 was contracted or not contracted. North Carolina law is clear that medical evidence is insufficient if it offers only a temporal relationship between a work related exposure and the development of the disease.
Maryland
Pursuant to Maryland’s Workers’ Compensation law, an occupational disease is defined as a chronic disease or disorder caused by an activity of your job or through an environmental factor within the work place. Benefits may be payable for occupational diseases sustained by the employee if it is a result of and in the course of employment. An occupational injury in the state of Maryland is generally an ailment, disorder, or illness that is the expected result of working under conditions naturally inherent in the employment and is ordinarily slow and insidious in its development. An employee alleging COVID-19 exposure would have the burden to prove that it was more probable than not, that the COVID-19 is causally related to the employment and that no other intervening exposure was responsible.
An occupational disease requires multiple tests that must be satisfied:
• The first test is objective and requires proof of one of the following:
• Show that the disease is an occupational disease due to the nature of the employment in which the hazards of the disease actually exist: OR
• Show that the disease and its manifestations are consistent with those known to result from a given physical, chemical, or biological agent attributable to the employment.
• The second test is subjective which is based on the weight of evidence, it may be reasonably concluded that this disease actually did come from the employment.
• Finally, the employee must prove disablement.
Telecommuting
As we all deal with this crisis, another workers’ compensation consideration is the transition of many of your employees from working in the office to telecommuting from home.
In Florida, when an employee is working from home, their home environment becomes their work environment. However, in order for an injury to be compensable for workers’ compensation benefits in the state of Florida, there still must be an accident “arising out of the work performed in the course and scope of employment.” That question relates to if the accident was a result of the work performed and occurred while performing work. The more complicated issue with employees working from home is when they are not actively working. There is a principle within workers’ compensation called the “personal comfort doctrine.” This applies to situations like lunch or bathroom breaks, getting a drink of water or getting fresh air. In cases where the employee is working on the employer’s premises, this doctrine is more clearly defined because the decision is primarily based on whether the employee has left the employer premises. When an employee is at home, this distinction may not be as clear.
These are some questions to consider when you have your employees work from home:
• Do have a telecommuting policy or telecommuting agreements with these employees?
• Does this policy require a designated work space or work hours?
• Are there any other specific requirements/limitations for telecommuting employees?
We will continue to monitor the COVID-19 situation closely and will follow guidance from public health officials and government agencies so we can continue to support our clients, your employees and the community.
Stay well!
The Johns Eastern Team