States continue to enact or propose new laws and release new guidance about the availability of workers’ compensation benefits for employees who contract COVID-19. Considering the potential for a wave of claims from employees contracting the virus, it is critical for employers to stay up to date on these developments in the coming months as they reopen or continue to operate.
A handful of states have already made it easier for certain employees who have contracted COVID-19 to obtain workers’ compensation benefits by creating a legal presumption that the employees contracted the disease as a result of their employment. Other states have legislation pending to implement such a presumption. Employers—particularly those operating in multiple states—should stay abreast of this rapidly changing workers’ compensation landscape.
To assist our clients in doing so, Morgan Lewis has created an interactive 50-state survey to track these developments. Updated regularly, the 50-state survey tracks not only executive orders and pending legislation, but also existing state decisional law that impacts the analysis of workers compensation for COVID-19 in a particular jurisdiction. If you would like to access the survey, please contact the Morgan Lewis lawyer with whom you regularly work, or one of the lawyers listed below.
Generally, employees who contract a disease may obtain workers’ compensation benefits if they can show that their illness arose out of or occurred in the course of employment. Typically, “ordinary diseases of life” are not covered by workers’ compensation because the employee is at no greater risk of contracting such diseases through work than as a member of the general public. Indeed, this is why the flu or common cold is generally not compensable under workers’ compensation regimes. By contrast, state workers’ compensation statutes typically allow workers to receive benefits for “occupational diseases,” which are generally defined as ailments that are contracted or aggravated due to the nature of a particular kind of work, and require proof that the disease was caused by conditions characteristic of and peculiar to a particular occupation or employment.
Now, some states (and likely others to follow) have responded to the challenges infected employees may face to show that their COVID-19 illness was contracted at their place of employment by creating legal presumptions that it was. Some states have adopted such presumptions only for narrow categories of employees, such as first responders or certain essential workers, while the relief provided by other states is far broader. California, for example, recently issued Executive Order N-62-20, which creates a rebuttable presumption that any employee who tests positive for COVID-19 contracted it within the course and scope of employment for purposes of workers’ compensation. There, the presumption attaches if the employee reported to work outside of the home at the direction of their employer and was diagnosed with COVID-19 within 14 days of the worker’s last day working outside of the home. Under the order, an employer then has 30 days to provide evidence to refute the presumption.
The California order is the most expansive of its type (thus far). Other states have imposed similar presumptions but only for specific types of workers. Alaska, Florida, Michigan, Minnesota, Missouri, New Hampshire, Utah, Washington, and Wisconsin, for example, have all enacted, announced, or released rules promulgating presumptions that first responders or essential workers (e.g.., firefighters, law enforcement, and certain medical providers) who become infected with COVID-19 contracted their illnesses at work.
Legislation is pending in other states to enact similar presumptions and several governors have signed executive orders to the same effect. Many of these executive orders and much of the pending legislation (as currently drafted) seek to create a presumption for specific and narrow categories of employees that are considered more likely to come into contact with the coronavirus in the course of their employment. Some pending state actions, such as the bill currently before the Ohio legislature, are similar to California’s in that they cover any employee required to work outside of his or her home during the state’s stay-at-home order.
For employees not covered by a presumption, they will still be required to demonstrate causation, i.e., that they contracted COVID-19 at the workplace. But existing case law or statutes in various jurisdictions may make easier an employee’s attempt to obtain workers’ compensation benefits for COVID-19 related injuries and expenses. In Connecticut, for example, direct exposure to an infectious disease (as opposed to, say, a physical wound or trauma) can be a compensable injury under the Workers’ Compensation Act. Under the District of Columbia Workers’ Compensation Act, an employee has a rebuttable presumption that the claim is compensable if something unexpectedly went wrong with his or her body and the working conditions could have caused the harm. Morgan Lewis’s workers’ compensation 50-state survey tracks how existing state law and workers’ compensation schemes address or may apply to COVID-19 claims, along with the relevant legislative proposals and executive orders.
Given this rapidly changing landscape, employers—especially those operating in several states—should monitor these developments. Morgan Lewis has several COVID-19 teams dedicated to helping clients navigate these employment-related issues.
For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. Find resources on how to cope with the post-pandemic reality on our NOW. NORMAL. NEXT. page and our COVID-19 page to help keep you on top of developments as they unfold. If you would like to receive a daily digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts, and download our biweekly COVID-19 Legal Issue Compendium.
If you have any questions or would like more information on the issues discussed in this LawFlash, or would like access to Morgan Lewis’s workers’ compensation 50 state survey, please contact any of the following Morgan Lewis lawyers:
Melissa D. Hill
Michael C. D’Agostino
Law clerk Elisa Egonu contributed to this LawFlash.