When Is COVID-19 Work Related?

In workers' compensation, the term "injury" is broadly defined to include "any injury or disease arising out of the employment." (Lab. Code, § 3208). So a disease like COVID-19 can be a work-related injury under some circumstances.

Under what circumstances can a disease be considered work-related and compensable? Pursuant to Labor Code § 3600(a), employers are liable for an injury "arising out of and in the course of employment ...." This requirement is commonly abbreviated injury AOE/COE. An injured employee has the burden of proving injury AOE/COE. The legal standards that apply are discussed in depth in the next several chapters. They are subtle, complex and in many areas unsettled as a matter of law.

An employee has multiple avenues for attempting to establish that he or she contracted the coronavirus at work, including the argument that the work subjected her to the risk of catching it. Moreover, even if the employee cannot establish that the coronavirus itself was industrial, it could aggravate an industrial condition, leaving the employer liable for the employee's death or increased disability. Employers could potentially be liable for other injuries related to the COVID-19 crisis. Claims of psychological injury come to mind. Work from home, travel and other measures adopted in response to COVID-19 could open employers to liability for a workers' compensation claim. There's a long list of complex issues and we discuss them all in depth herein.

OCCUPATIONAL VERSUS NON-OCCUPATIONAL DISEASES

COVID-19 is caused by a virus, commonly called the coronvirus, and you don't see many flu-like viruses claimed in workers' compensation. They are called "nonoccupational diseases" and are generally not covered by workers' compensation.

Workers do not normally pursue workers' compensation claims for nonindustrial diseases. When an employee suffers from the common cold or flu, for the most part, the symptoms are minor. The employee does not require formal medical care and fully recovers after a few days of rest. Employees often use sick days for nonoccupational diseases, because there isn't any real incentive to pursue a workers' compensation claim.

COVID-19, on the other hand, is a minefield in terms of workers' compensation liability for an employer. It is a much more devastating disease and is more lethal than the common flu. While the vast majority of those who contract the disease will survive, many survivors require hospitalization and emergency medical care. Moreover, even if a COVID-19 patient does not require formal medical care, current state and federal guidelines preclude that employee from returning to work with the disease. Thus, employees who contract COVID-19 have a far greater incentive to pursue a workers' compensation claim, because it could potentially result in extended time off work, expensive medical bills, and in the worst cases, death.

As discussed in Sullivan on Comp Section 5.9, the law makes a distinction between an occupational diseases and non-occupational diseases. The Labor Code does not define the term occupational disease, but it has been defined by the courts as "one which results from the nature of employment" where the disease is "a natural incident of a particular occupation as distinguished from and exceeding the hazard and risks of ordinary employment." For example, silicosis and asbestosis are generally considered occupational diseases, because they are more common in particular occupations.

Conversely, in LaTourette v. Workers' Comp. Appeals Bd., the California Supreme Court explained that a nonoccupational disease is "one that is not contracted solely because of an exposure at work or because it is related to a particular type of work." COVID-19 would be considered a nonoccupational disease, because it can be contracted anywhere and is not linked to any particular type of work. Generally, nonoccupational diseases do not arise out of the employment and are not compensable.

In LaTourette, the Supreme Court noted that a causal connection is not established just because an employee contracts a disease while employed or becomes disabled from a nonindustrial disease during the employment. It explained, "The narrower rule applicable to infectious diseases arises from the obvious problems of determining causation when the source of injury is of uncertain etiology, the product of invisible and often widespread viral, bacterial, or other pathological organisms. The potentially high costs of avoidance and treatment for infectious diseases, coupled with the fact that such illnesses often cannot be shown with certainty to have resulted from exposure in the workplace, also explain the different line-drawing by our courts in the area of nonoccupational disease."

LaTourette noted, however, there are two principal exceptions to the general rule of noncompensability for nonoccupational disease:

1. If the employment subjects the employee to an increased risk compared to that of the general public; and
2. If the immediate cause of the injury is an intervening human agency or instrumentality of the employment, the injury is compensable.

If either of these exceptions is established, then the nonoccupational disease would be treated as an occupational disease for which an employer would be liable. These exceptions will be discussed in the next sections.

EMPLOYEE MUST ACTUALLY CONTRACT COVID-19 TO BRING A CLAIM

Since the initial outbreak, many employees have been sent home when they are sick regardless of whether they test positive for the coronavirus. Some employees can work from home (and get paid), but others cannot. Regardless, employers are not required to provide workers’ compensation benefits to an employee just because he or she is sent home. Rather, the employee must prove industrial injury, e.g., prove that he or she contracted COVID-19 on an industrial basis.

For the injured worker to receive benefits, an injury must be "compensable". An injury is compensable if it causes "disability or the need for medical treatment." (Lab. Code, § 3208.1). This concept is discussed in depth in Sullivan On Comp section 5.1 Injury –– Defined.

For example, in one case, the appeals board held that a nurse who was exposed to chicken pox at work was not entitled to workers' compensation benefits. She had been exposed to chicken pox at work, and sent home on the possibility she might be infectious. When she did not contract chicken pox as a result of her work exposure, the appeals board explained that a prophylactic layoff does not constitute an injury within the meaning of the Labor Code, and § 3208.1(a) does not suggest that an injury can occur absent some form of pathology.

Accordingly, an employer is not obligated to pay workers' compensation benefits for an employee who was possibly exposed to the coronavirus at work. The employee must establish he or she contracted COVID-19 at work and that the disease caused "disability or the need for medical treatment." Given that testing is not widely available for COVID-19, it is possible that some who actually contracted the disease may not be able to establish a compensable injury.

PRESUMPTION IN FAVOR OF PEACE OFFICERS AND HEALTH CARE EMPLOYEES

As discussed in Sullivan on Comp Section 5.17 Presumption of Injury –– Public Employee in General and Section 5.18 Presumption of Injury –– Public Employee's Covered Condition, the Labor Code contains a number of presumptions in favor of certain employees. The purpose of these statutes "is to favor a special class of employees whose service is vital to the public interest and whose strenuous work makes them especially vulnerable."

Because of COVID-19, employees deemed to be essential were allowed to continue working while non-essential workers were required to stay home. Legislative efforts have been introduced to create a COVID-19 presumption for certain workers who have been significantly effected by the outbreak. Specifically, an amendment to Assembly Bill 664 has been introduced to cover firefighters, peace officers and health care employees.

The bill would create a presumption in favor of the specified workers who are exposed to or contract a communicable disease, including COVID-19. The term "injury" would also include defined injury to include direction to enter quarantine by a health care professional, public agency or the employer. Thus, although a compensable injury is normally required for workers' compensation benefits, the bill would authorize benefits simply because covered workers were quarantined as a result of exposure, even if they don't contract COVID-19. The presumption would apply to a communicable disease on or after Jan. 1, 2020.

The proposed bill covers normal workers' compensation benefits including hospital, surgical, medical treatment, disability indemnity, and death benefits. It also includes benefits may not normally be covered. Specifically, it would cover reimbursement for personal protective equipment, reasonable medical expenses for the protection from or treatment of the injury and reasonable living expenses, other than temporary housing, that exceeds the living expenses usually incurred by the person that are a direct result of the injury. A person is not required to have entered quarantine in order to be reimbursed for these expenses. If a person is quarantined, the employee must also be reimbursed for reasonable temporary housing costs.

The proposed presumption would be conclusive. Once the required conditions are established, it would not be rebuttable by any evidence. Furthermore, the presumption would extend following termination of service for a period of 90 days, commencing with the last date actually worked in the specified capacity.

The specified intent of the bill is "to fully compensate the peace officers, firefighters, and health care employees whose lives are placed at risk when they are exposed to or contract COVID-19 or other communicable diseases in the course of performing their duties." It further specifies that the covered employees should not be required to use their accrued vacation leave, personal leave, compensatory leave, sick leave, or any other leave.

Notably, the proposed bill would also amend Labor Code § 4663(e) to include the COVID-19 presumption as one to which apportionment under that statute would not apply. Therefore, even if an employee has a preexisting lung condition, such as one caused a smoking habit, if the COVID-19 causes any permanent impairment, the employee would be entitled to the full value of permanent disability without apportionment.

The proposed bill has not been passed by the Legislature. Moreover, it is likely that other bills will be introduced to cover other essential workers, such as grocery workers and mass transit workers.

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