With the current pandemic related to COVID-19, referred to as coronavirus (because the virus under a microscope looks like a crown or Corona), we expect to get calls from clients related to various benefits which might be available to them.
First and foremost, unemployment compensation benefits are available if an employer temporally closes or goes out of business because of the disease. Or, if an employer reduces a worker’s hours because of the disease, partial benefits could potentially be available. Further, if you have been told not to work by your employer because your employer feels you might get or spread the disease, despite that employer staying open for business, unemployment benefits will likely be available. Finally, if you have been told to quarantine yourself or self-isolate, or you work in a county under government-recommended mitigation efforts, unemployment benefits may be available. New Family and Medical Leave Act (FMLA) rules have been proposed, and new sick leave benefits mandated. These new benefits are rapidly changing as this article is being written.
Since I am a workers’ compensation attorney certified as a specialist by the Pennsylvania Supreme Court, my concern is mostly on the workers’ compensation aspects of the disease – if a Pennsylvania employee gets sick due to COVID-19, could that person file a workers’ compensation claim? The short answer is yes.
First, if you believe that you have been exposed to COVID-19 in your workplace, you may be eligible for workers compensation in either of the following ways. You can notify your employer to file a typical “disease as injury” workers compensation claim, which requires you to provide medical evidence that you were exposed to COVID-19 in the workplace. Or, you can file an occupational disease claim, which requires you to show that COVID-19 is occurring more in your occupation than in the general population. What exactly does this mean?
If you file as a “disease as injury” workers compensation claim you will be required to provide medical evidence that you were exposed to COVID-19 in the workplace. Depending on your job, this may be quite difficult. For instance, if you are a nurse in a hospital, the facts relating to your exposure may be very obvious. Perhaps you treated an infected patient who actually coughed or sneezed directly in your face. However, if you are an employee who does not typically work around sick patients, the medical evidence made be very difficult to prove. The fact that so many people around the world are getting this virus would certainly lend itself to various potential exposure sites (food stores, gas stations, etc.), and tying any exposure directly to the workplace could certainly be very difficult.
A second option would be to pursue and occupational disease claim. This would require you to show that COVID-19 is occurring more in your occupation than in the general population. This method would be ideal for someone working in the healthcare industry. Under this method, if you work in an occupation which is shown to a higher incidence of exposure that the general population, the burden would then shift to the employer to show that the disease was not contracted at work.
The bigger question becomes would it be worth it to file a workers’ compensation or an occupational disease claim related to contracting COVID-19? Generally, workers’ compensation claims need to be separated into two parts: medical benefits related to the treatment of the injury, and wage-loss benefits related to loss of wages stemming directly from the injury.
Medical benefits related to the treatment of a COVID-19 infection could certainly be extensive if hospitalization is needed. However, it seems that more than 80% of people who are contracting this virus need no medical treatment all at all. Further, there is no medication to take related to this disease other than over-the-counter cold medicine. But, in those instances where hospitalization is required, workers’ compensation medical benefits could be beneficial. However, once a person (hopefully) recovers from the virus, usually within a week or so, the cost of medical treatment would likely drop to zero.
Filing a workers’ compensation claim for the contraction of COVID-19 to get wage-loss benefits could be equally minor given the length of sickness related to contracting the virus. For instance, if someone gets the disease and is forced to be out of work for two weeks, and then an additional two weeks after that for containment, workers compensation benefits might be obtainable for those four weeks. However, any wage-loss beyond the extent of the person being sick would be questionable. An argument could be made that if someone lost their job because they contracted this virus at work, the resulting wage loss following the termination of employment could potentially be compensable. However, ongoing disability related to a disease which is no longer present in the claimant’s body would be very difficult to prove. Therefore, a workers’ compensation insurance carrier could easily terminate benefits soon after the same benefits began by showing that the claimant is fully recovered from the injury. Of course, all of this would depend on whether it could be proven that the disease was actually contracted at work, and that is a large hurdle in itself.
Perhaps the most intriguing workers’ compensation claim would flow from a death caused by the contraction of COVID-19 from the workplace. The spouse of the deceased worker, and dependents, could potentially be eligible for fatal claim benefits under workers’ compensation if it could be proven that contraction of the disease led to the employee’s death. A claim like this would certainly be litigated for causation, but the potential benefits available to the still living loved ones would make such a claim worth pursuing.
If you have questions relating to COVID-19 or any other occupational injury or disease, be sure to speak with a certified specialist workers’ compensation attorney.
Daniel E. McCabe, Esq., is an associate in the law firm of Wolf, Baldwin & Associates, P.C.. He and managing attorney Levi S. Wolf are two of about 200 lawyers across the state who have been certified as specialists in the practice of workers’ compensation law by the Pennsylvania Bar Association’s Section on Workers’ Compensation Law as authorized by the Pennsylvania Supreme Court. His practice, located in the firm’s West Chester office, concentrates on the representation of injured workers and medical providers. He can be reached by phone at 610-436-8300, or by e-mail at [email protected].