Are You Entitled to Worker’s Compensation For Coronavirus Infection?

During the coronavirus pandemic, many Americans are still on the front lines making sure that this country continues to run. For instance, healthcare professionals, first responders, police officers, postal workers, and transportation personnel are still working hard to provide essential services to the Americans ordered to stay at home.  These American workers are at risk of infection every single day. If you become a victim infected by the coronavirus during the course of employment, you may be entitled to workers’ compensation for coronavirus infection. 

What Is Workers’ Compensation Benefits?

The California Workers’ Compensation Act protects workers who are injured while doing their job.  Workers’ compensation provides coverage for occupational injuries or illness that arise out of and in the course of employment. It is clear that workers’ compensation includes illness.  

In California, employers are required to have workers compensation insurance that provides coverage for their workers if they are injured or contract an illness while on the job. California is a “no-fault” workers’ compensation state. This means that all employees are entitled to workers’ compensation benefits no matter if the injured employee was partially or completely at fault for their own injury. 

California law requires employers to pay for eligible employees’ medical treatment and wage replacement while off work recovering from their injury or illness. Additional payments may also include any permanent disability due to the illness.

Will A Worker Who Gets Sick On The Job Be Able To Recover Workers Compensation Benefits?

As with any other work-related injury claim, there must be proof that the injury arose out of the employment.  In regards to the coronavirus pandemic, in order to qualify for worker’s compensation benefits, there must be proof that the illness was contracted arising out of and in the course of the employment.  The worker will then be able to file a workers compensation claim with the employer. 

To be clear, worker’s compensation insurance covers only illness or injury “arising out of or in the course of employment.” If there was only a chance an employee was exposed to the coronavirus while on the job, the claim will likely be denied. 

The only clear case in which a worker will qualify for worker’s compensation benefits will be if the exposure was a direct result of the work. For instance, certain types of businesses have employees whose work is directly related to the coronavirus.  These include jobs that deal with laboratory testing, first responders, medical professionals, and healthcare clinics. It is important for the employers of these types of jobs to have very precise protocols. It is the responsibility of the employer to minimize risk and identify potential exposure to the virus.  Worker’s compensation will most likely be applicable to the employees who are in the direct line of attack by the virus.  

Was The Coronavirus Infection Related To Employment?

In order to obtain worker’s compensation benefits for contracting the coronavirus there must be special circumstances and aspects of the employment.  For instance, there must be particular work conditions or job duties that may directly lead to infection. If the illness was just as likely to have occurred in a non-work setting as compared to in the course of employment, then the sick worker will not be entitled to worker’s compensation benefits. 

In most jurisdictions, if no special circumstances of the employment apply, the contraction of the virus will most likely not be covered under workers’ compensation. This is known as the doctrine of “increased risk.” To put it simply, the job must put the worker at an increased risk for infection. The ability to recover workers’ compensation benefits is barred if the conditions of employment pose no greater risk than non-work life.  However, this is a case-by-case determination.  

Many state workers’ compensation statutes exclude “ordinary diseases of life” such as the common cold or flu. Greater exposure to the general public tends to limit liability for workers’ compensation insurers. For instance, the more widespread COVID-19 becomes, the more difficult it may be for the employee to show that it is work related rather than an ordinary disease of life to which the general public is exposed. The general rule is that the worker will not qualify for worker’s compensation benefits if the worker was at no greater risk for infection than the general public. In fact, some insurance carriers have just put out official notices stating that the coronavirus exposure will be compensable on a “case-by-case” basis.

California has past cases that have allowed workers’ compensation benefits to be awarded to sick workers.  For example, Disneyland employees in California contracted the measles disease during a 2015 outbreak. The employees were covered under worker’s compensation. Also in California, employees sickened by “communicable diseases” have been successful in obtaining workers’ compensation benefits by showing they were particularly vulnerable. In addition, California allowed workers who were exposed to dust and contracted “valley fever” while on the job to be awarded workers’ compensation benefits. 

The illness must satisfy the “but for” test to determine if the illness arose out of and in the course of employment. In order to satisfy the “but for” test in regards to a communicable disease such as the flu or the coronavirus, the question is: “But for the employment, would the employee have contracted the illness?”  This is a difficult test to satisfy since the pandemic is widespread. 

In support of allowing healthcare professionals to obtain workers compensation benefits, it can be argued that during the recent SARS epidemic, there was a clear link between healthcare professionals and the “special aspects” of their employment.  In fact, 21% of the people who contracted SARS were healthcare professionals. In addition, in California it can be argued that those who work in places with significant public contact should be entitled to worker’s compensation benefits. As precedent, the case involving the 2015 measles outbreak in Disneyland can be used in support. Therefore, workers such as grocery store attendants and delivery workers may have standing to obtain worker’s compensation benefits.  

Many law enforcement officers are worried about whether they qualify for worker’s compensation benefits. The coronavirus is not specifically listed as a covered condition arising out of their employment.  Fortunately, pursuant to California Governor Gavin Newsom’s executive order issued in response to the pandemic, state workers will be afforded worker’s compensation benefits if they contract COVID-19 during the course of their work.

Are Worker’s Compensation Benefits Available If You Are “Exposed” To The Coronavirus?

For the purposes of worker’s compensation law, there is a difference between being exposed to the virus and being diagnosed with the virus.  It is important that the sick worker in fact obtains a diagnosis of the coronavirus in order to obtain worker’s compensation benefits. Mere exposure is not sufficient.  Therefore, the employers should encourage the workers to go to their doctor immediately if they feel sick and to get tested for COVID-19. The state is offering free testing for those who are experiencing the symptoms of coronavirus.  In order to obtain worker’s compensation benefits, the sick worker should obtain a physician’s report stating that the disease is related to the employment.   

How To File For Workers’ Compensation For Coronavirus?

A worker who becomes ill with the coronavirus must immediately submit a Workers’ Compensation Claim DWC-1 Form to their employer.  A worker cannot just tell their employer that they are sick – the worker must in fact submit the physical document. The employer then has 24 hours to submit the claim to their insurance carrier.  The employer must also inform the sick worker to get medical care. The insurance company will then have 14 days to determine if the worker’s compensation claim is accepted, delayed, or denied.  

Unfortunately, it is most likely that the insurance company will deny the claim for lack of evidence connecting the virus to the employment. If the claim is denied, the sick worker will not receive financial compensation for the time off work (which is known as temporary disability) or for the medical treatment.  If you are infected by the coronavirus it is important to seek treatment immediately as it can be life or death. The workers compensation claim can be proven at a later time. It is most important to provide the DWC-1 Form and get immediate treatment.    

The insurance company may also delay the determination of the worker’s compensation claim.  If that is the case, the insurance company must still provide up to $10,000 in medical treatment for the coronavirus.  The time off will not be provided temporary disability benefits while the insurance company has delayed its determination.       

In the unlikely situation in which the insurance company accepts the claim when first submitted, the insurance company is not obligated to provide temporary disability for the first three days out of work.  Disability benefits will not be provided until the worker has been forced to miss work for 14 days. The disability benefits will then be paid every two weeks thereafter.   

Because it may take a long time to process worker’s compensation claims, it is important that the sick worker also apply for state disability benefits with the California Employment Development Department.  The sick worker will be eligible for disability benefits with the Employment Development Department if payments into the state system have been withheld from the worker’s paychecks. In addition, the employer may also have a private insurance policy that may cover the worker’s time off due to the disability caused by becoming sick.  

What Benefits Are Available If You Get Coronavirus Due To Employment?

If you are unable to do your usual job because you were exposed to and contracted COVID-19 during the regular course of your work, you may be eligible for workers’ compensation benefits.

Benefits include temporary disability payments, which begin when your doctor says you cannot do your usual work for more than three (3) days or you are hospitalized overnight. You may be entitled to temporary disability for up to 104 weeks. Temporary disability generally pays two-thirds of the gross wages you lose while you are recovering from a work-related illness or injury, up to the maximum weekly amount set by law. In addition, eligible employees are entitled to medical treatment and additional payments if a doctor determines you suffered a permanent disability because of the illness. Temporary disability stops when either you return to work, your doctor releases you for work, or your doctor says your illness has improved as much as it’s going to.  As of right now, it is unclear if the coronavirus infection may lead to permanent disability for which a worker may obtain benefits.  

Can I Get Workers Compensation For Coronavirus If I Am A Freelance Worker ?

Independent contractors are responsible for their own work and are not covered by workers compensation benefits.  Only employees are entitled to workers compensation benefits. However, certain jurisdictions are reclassifying particular workers as employees in order to qualify for workers compensation.  For example, certain “gig workers” like instacart delivery workers may be determined to be employees in order to obtain workers compensation.   

Can An Infected Worker Also Sue Their Employer? 

An infected employee generally cannot sue an employer based on the worker’s compensation law providing the exclusive remedy. However, if the employer violated public policy then the employee could sue the employer. Employees also can sue their employer if the exposure to the virus was caused by the willful act or omission of their employer.

Do I Need A Lawyer To Get Workers Compensation For Coronavirus?

If you or a loved one have been infected by the coronavirus during the scope of employment, it is best to consult with an experienced attorney to determine if you may obtain workers compensation for coronavirus.  Contact The Sterling Firm to speak with an experienced attorney.  We are here to help!