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QUESTION OF THE DAY: COVID-19 & Workers Comp

If an employee contracts COVID-19, the illness associated with exposure to the coronavirus, and they believe that they got it from a coughing worker sitting/standing next to them, can they file a workers’ compensation claim?

ANSWER:

This answer is based on  my 37 years of workers’ compensation experience and knowledge of workers’ compensation laws pertaining to what is called an “occupational disease”. See Section 8-40-201(14), Colorado Revised Statutes.

A worker might receive workers’ compensation  benefits if the worker could, by preponderance of the evidence, prove all of the following:

1. The co-worker definitely had the virus.  This will be hard to prove due to HIPAA regulations protecting the medical privacy rights of the injured worker. An admission by the worker might not be sufficient evidence.  The claimant’s attorney would have to subpoena the co-worker to a hearing; however, the worker could decline to answer the question about diagnosis by invoking HIPAA confidentiality rights.  If several workers got the illness, and they could also trace the illness to contacts with the co-worker who is suspected to have the virus, the evidence in favor of the claimant is better, but  that evidence still may not be conclusive due to requirement 3 below.
2. The co-worker shared air (within 6 feet), bathroom, tools, and precautions for shared use (e.g. masks, gloves, etc.) were not in place.
3. Their only contact with a coronavirus carrier was at work.  This element of proof will be extremely hard to prove, and it will bar most cases.  How can an employee prove that the only place they were exposed to the virus was at work?  No one lives in a bubble:  We all interact with significant others, cashiers, servers, and  other third parties outside of work.  Who can prove that NONE of them was a carrier when one can be asymptomatic and still carry the virus? Section 8-40-201(14), Colorado Revised Statutes,  provides in relevant part that a worker must prove that the disease “does not come from a hazard to which the worker would have been equally exposed outside of the employment.”    This burden of proof will be nearly impossible to meet given the realities of how the virus is transmitted.
4. They  had need of medical care or lost time from work. 
5. The fact that the afflicted employee receives public benefits (e.g., wage payments for lost time, free coronavirus testing, etc.)  will not bar a claim, and probably will not reduce the liability of the workers’ compensation carrier for benefits.

The above analysis also applies to the following scenarios, with appropriate modifications:

1. Medical personnel who interact with multiple ill patients. In this situation, it will obviously be much easier to meet the burden of proof.
2. Cashiers, servers, receptionists, on floor salespersons, public employees with public contacts, etc.    Like office or factory workers, the burden of proof will be difficult to meet.
3. Other workers who interact with the public.   I recommend reference to the analysis above, understanding that workers’ compensation judges tend to be conservative and likely to hold any claimant to the tough burden of proof to prove an “occupational disease”.

Workers’ compensation carriers will soon develop their own standards for evaluating claims, but be assured that most carriers will uniformly deny COVID-19 claims pending investigation.

If you have further questions about my answer, please contact me.