Can Coronavirus Become a Work Comp Claim?

As the coronavirus disease 2019 (COVID-19) continues to spread globally, many employers are wondering if they can be held responsible if an employee contracts the illness and what precautionary actions should be taken to reduce risk. Two tests must be satisfied before any illness or disease, including the Coronavirus, qualifies as occupational and thus compensable under workers’ compensation. 1) The illness or disease must be “occupational,” meaning that it arose out of and was in the course and scope of the employment; and 2) The illness or disease must arise out of or be caused by conditions “peculiar” to the work.

Qualifying as “occupational” is the low hurdle. The higher hurdle is whether the illness or disease is “peculiar” to the work. If the illness or disease is not peculiar to the work, it is not occupational and thus not compensable under workers’ compensation. An illness or disease is “peculiar” to the work when such a disease is found almost exclusively to workers in a certain field or there is an increased exposure to the illness or disease because of the employee’s working conditions. If an employee who during the course and scope of employment came in close contact with a party infected with the coronavirus. Below are some examples where employers may be responsible:

• Employees who travel overseas for business and contract the illness.
• Employees who are exposed to the illness at work by an infected coworker.
• Employees who are assigned to work in a location with infected parties.

Steps to Take Now to Protect Your Workers from Coronavirus

Health authorities now believe infected people can spread the virus before they begin to show symptoms, increasing the likelihood that they will pass the illness to others. This makes promoting healthy habits in the workplace especially important.

Ensure sick employees stay home: Employees should stay home if they are experiencing acute respiratory illness symptoms such as fever, cough and shortness of breath, and they should not come back to work until they are symptom free for at least 24 hours. If an employee appears to arrive to work sick or becomes sick during the day, he or she should be separated from other employees and sent home immediately. If you have contract or temporary employees, talk to the companies that provide these employees to ensure sick workers stay home.

• Be Flexible with Your Sick Leave Policies: Make sure your sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies.
• Educate Employees: Place posters in common areas that encourage staying home when sick, to use cough and sneeze etiquette, and remind everyone to wash their hands.
• Keep Supplies Stocked: Make sure tissues, hand sanitizer and soap and water are regularly stocked and accessible.
• Perform Routine Cleaning: Clean commonly touched surfaces regularly. Provide disposable wipes to employees so they can keep their workstations clean as well.
• Take Steps Before Employees Travel: If you have any employees who are required to travel for business, be sure to check CDC’s Traveler’s Health Notices for guidance.
• Respect for the employee’s privacy is also very important, so any applicable policies in this regard should be reviewed as well.

There are also legal implications. Employees impacted by the virus, may be entitled to protections under the Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), as well as myriad state and municipal leave laws. The employer’s human resources and legal departments should be engaged to review its leave policies to determine the protections impacted employees may have.