How would the Virginia’s Workers’ Compensation system deal with a virus like the Coronavirus (COVID-19)? It is not to hard to imagine a scenario where a workplace outbreak of the virus leads to multiple worker’s compensation claims.
Your workplace remains open, despite the closure of a number of schools and government offices. After a few days a number of employees begin to call out sick. Upon seeking medical treatment they are diagnosed with the Coronavirus. As more workers begin to call out, you are forced to close your business temporarily. A number of employees who were diagnosed with Coronavirus believe they caught it from infected colleagues at work. A flood of workers’ compensation claims are filed.
Are these compensable claims that the Employer will be responsible to pay?
For claims falling within the jurisdiction of the Virginia Workers’ Compensation Act (the “Act”), the answer is likely no. While the Act provides coverage for injuries arising out of and in the course of employment, there are some separate and very specific rules that deal with diseases. The Act covers “occupational diseases,” which are defined as diseases that arise out of and in the course of employment, but generally does not include “ordinary diseases of life” to which the general public is exposed outside of the employment unless a claimant can meet certain heightened proof requirements. Occupational diseases are clearly related to the work performed and can include medical conditions resulting from hazardous exposures to chemicals or diseases. An ordinary disease of life is only covered where a claimant can show by clear and convincing evidence that the disease arose out of and in the course of the employment and did not result from causes outside of the employment. As opposed to an occupational disease, a claimant bringing an ordinary disease of life claim must meet a heightened burden of proof.
The Virginia Workers’ Compensation Commission determines whether a condition or disease qualifies as an occupational disease or as an ordinary disease of life. This is a fact specific medical issue that is decided on a case-by-case basis. The Commission considers the specific characteristics of the employment, the type of work performed, and the effect it has on the employee. Where does a pandemic virus fit in this analysis? The World Health Organization (WHO) defines a pandemic as the worldwide spread of a new disease. There is no caselaw dealing with pandemic viruses, but as they are by definition widespread, it seems likely that they would fall within the ordinary disease of life category because they are conditions to which the general public is exposed outside of employment. Therefore, a claimant alleging work-related Coronavirus would need to prove by clear and convincing evidence that the disease arose out of and in the course of the employment and did not result from causes outside of the employment. As you might imagine it will necessarily be very difficult to prove where a particular exposure occurred, especially given the heightened burden of proof placed on the Claimant. There remain many questions regarding how Coronavirus spreads and the applicable time span between exposure/infection and the manifestation of symptoms which will also complicate such efforts. It seems likely that Coronavirus will be found to be a disease to which the employee would have substantial exposure outside of the employment and which is not incidental to the character of most businesses. Therefore Coronavirus is unlikely to be compensable under the Act.
There are always exceptions. In this case, the most obvious exception would be for medical professionals treating persons infected with Coronavirus. Healthcare workers may be able to show that the disease was a result of their employment and not from outside causes. This is especially likely to be the case early on, when the virus is less prevalent in the general population, and the healthcare provider is working in close proximity to infected individuals.
While Coronavirus claims are unlikely to be compensable under the Act, it remains important that such claims are handled appropriately. If you do receive workers compensation claims related to Coronavirus, you should process those claims as usual per the reporting requirements of the Virginia Workers’ Compensation Commission and your workers’ compensation insurance carrier. This will ensure that you retain insurance coverage to help defend the claims, as well as the ability to raise all available legal defenses.