COVID-19: The Next Occupational Disease?
At a time when the terms “Omicron” “Delta” and “COVID” have become part of our daily vocabulary, one of the biggest issues facing employers is keeping their employees safe, healthy, and COVID free. While we rarely see claims for the flu, a cold, or other common illnesses filed as workers’ compensation claims, COVID-19 confidently strolled into town as the ultra-contagious, sabre wielding, new kid on the block, and we had no idea how the Ohio BWC would address it. Now, almost two years into the global pandemic, we have a better idea of how COVID-19 claims will be addressed by the BWC and its adjudicating sister, the Industrial Commission of Ohio.
As a general matter, the Ohio BWC pays medical benefits and lost wages to employees who are injured or contract an occupational disease on the job. The BWC also pays death benefits to survivors when a relative’s death results from a work-related injury or occupational disease.
The good news for employers: generally, communicable diseases like the flu, the common cold, and COVID-19 do not give rise to workers’ compensation claims because people are exposed in a variety of ways, and few jobs create a hazard or risk of contracting the diseases in a greater degree or in a different manner than the general public. The bad news: unfortunately there are situations when COVID-19 has been approved as an occupational disease.
For an employee to be able to claim workers’ compensation after contracting COVID-19, the employee must prove his or her job poses a special hazard or risk that is greater than the risk of contracting COVID-19 in either the general public or employment generally. This depends on how the employee contracted COVID-19, and the nature of the employee’s occupation. As you can imagine, the nature of some occupations likely leads to a greater risk of contraction, such as first responders, healthcare workers, corrections officers, grocery store workers, and food processing workers, to name a few. However, even when dealing with an employee in one of these higher risk positions, the employee also bears the burden of proving he or she was actually exposed to and contracted COVID-19 in the workplace, rather than a party, family gathering, or a casual happy hour with a friend.
Often, the analysis of “when and where” the employee was exposed requires a fact-intensive investigation. While employers may not want to invest the time and money in such an investigation, the costs of a COVID-19 claim could include not only lost wages and medical benefits, but also long-term disability and death benefits. In fact, according to the BWC’s figures, as of October, 2021, over 4100 workers’ compensation claims for COVID-19 have been filed. Of those, over 2000 have been allowed, 1900 have been dismissed or denied, and the remaining claims were pending a decision. Healthcare/first responders represent over half of the claims filed in Ohio.
We fully expect COVID-19 regulations, guidance, and education to further evolve in 2022, and our Labor and Employment team is here to help. We urge employers to consult professional guidance on their safety practices and procedures for addressing COVID-19 exposure as we navigate this brave new world together.