We have received several inquiries from clients regarding the potential for employer liability under the NYS Workers’ Compensation Law should an employee contract coronavirus disease 2019 (COVID-19).
In short, we believe the likelihood of successful Workers’ Compensation claims arising out of COVID-19 contraction is low for most employers. For a typical employee, the standard of proof would require demonstration of a source and the transmission of COVID-19 at work. However, a significant potential exception are hospital workers and medical professionals, who may be able to successfully pursue occupational disease claims if they are exposed to the virus at work.
The NY Workers’ Compensation Board has not issued decisions directly addressing the compensability of recent viral epidemics (H1N1, SARS, swine flu, bird flu or influenza). However, there is relevant earlier case law that we believe would apply in analyzing the compensability of cases involving the current COVID-19 outbreak. Below is a brief summary regarding the applicable case law as is applies to both occupational disease and accidental injury claims.
As the current COVID-19 situation unfolds, cases will likely arise that present new issues and questions regarding employer liability. If you have a more specific inquiry or would like to discuss the issue in greater detail, please feel free to contact our office.
- Occupational Disease Claims Arising from COVID-19 Exposure
Diseases contracted in the workplace are not “occupational diseases” unless they meet certain well-established criteria. New York’s Court of Appeals discussed the concept of occupational disease as applied to a communicable disease at length in Harman v. Republic Aviation Corporation (298 N.Y. 285 [1948]). In Harman, the claimant sought compensation benefits alleging that he had contracted tuberculosis from a particular co-employee who suffered from that disease. The claim was rejected on the grounds that tuberculosis was not an occupational disease associated with the claimant’s occupation as a foreman’s assistant in the tool and rig shop of Republic Aviation Corporation. The basic test was articulated by the Court as follows:
“An ailment does not become an occupational disease simply because it is contracted on the employer’s premises. It must be one which is commonly regarded as natural to, inhering in, an incident and concomitant of, the work in question. There must be a recognizable link between the disease and some distinctive feature of the claimant’s job, common to all jobs of that sort…[A]n occupational disease is one which results from the nature of employment, and by nature is meant conditions to which all employees of a class are subject, and which produce the disease as a natural incident of a particular occupation, and attach to that occupation a hazard which distinguishes it from the usual run of occupations and is in excess of the hazard attending employment in general.”
This last phrase, “in excess of the hazard attending employment in general”, is key to understanding why a communicable disease is not an occupational disease for employees in a supermarket, warehouse or office operation. While it is true that persons so employed come into contact with co-employees and with the general public, the risk of contact with co-employees and the general public is common to employment in many occupations.
Thus, to establish the contraction of a communicable disease as an occupational disease, a claimant would have to show that similarly situated employees are normally and constantly exposed to the danger of contracting a particular disease. This requirement is particularly important when we consider the potential liability for compensation benefits during an outbreak or epidemic like the currently spreading coronavirus. Note, that inherent in the definition of occupational disease is a risk to which all similarly situated workers are “normally and constantly” exposed. A coronavirus outbreak or epidemic is neither normal nor constant. It is not sufficient to show that a disease is contracted as a result of peculiarities of a particular workplace or method of work. The risk of contracting a disease must be inherent in the occupation or it fails to meet the definition of an “occupational disease”.
Consistent with this analysis, it is possible for communicable diseases to be established as occupational diseases for hospital workers. (Yearich v. Roosevelt Hospital, 246 A.D. 961; Vanore v. Mary Immaculate Hospital, 285 N.Y. 631). Employers of certain hospital workers may be at risk for claims of occupational disease when those workers contract communicable diseases. New York Law does not, however, support occupational disease claims made by employees in other occupations for the contraction of communicable disease.
2. Accidental Injury Claims Arising from COVID-19 Exposure
There is also a question of whether contraction of a communicable disease can be considered an accidental injury under New York’s Workers’ Compensation Law. The difficulty with establishing the contraction of a communicable disease as an accidental injury is the “time definiteness” requirement for an accidental injury. In general, the question of whether an injury is the result of an “accident” within the meaning of the Workers’ Compensation Law is determined based on the “commonsense viewpoint of the average man”. (See Masse v. James H. Robinson Co., 301 N.Y.34 [1950]).
The time definiteness requirement instructs that an accidental injury must be assignable to an event that occurred at a reasonably determinable place and time. The time definiteness requirement has been broadened to include both events and their results. Thus, a sudden traumatic event resulting in immediate injury meets the time definiteness requirement. However, New York also recognizes a “gradually occurring injury” as accidental if it occurs as a result of unusual environmental conditions or events assignable to something extraordinary in the workplace. (See Johannesen v. New York City Department of Housing Preservation and Development, 84 N.Y.2d 129 [1994]).
Using this theory, a correctional officer who contracted tuberculosis through exposure, over a period of three or four months for two or three hours a day, to an infected, coughing inmate was found to have an accidental injury. (Middleton v. Coxsackie Correctional Facility, 38 N.Y.2d 130). Note the specificity required by the Middleton case. The source of the communicable disease was identified as a single inmate and the claimant had daily exposure over a course of weeks. This highlights the principal problem in establishing the contraction of a communicable disease as an accidental injury.
New York requires a level of specificity that demands proof of a particular source for the communicable disease and a transmission process. It would not be adequate for an employee at a typical business who contracted COVID-19, to present evidence that the virus was generally present in the community, and that he or she was exposed to the public. Instead, New York Law would require proof that a specific customer or customers known to be sick with COVID-19 had transmitted the disease to the complaining claimant. Although this presentation of a claim is possible, the practical difficulty of producing this proof makes a successful claim for the accidental transmission of a communicable disease unlikely.
