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New York’s unfortunate emergence as the epicenter of the COVID-19 pandemic in the United States has raised an abundance of questions regarding the compensability of claims stemming from alleged exposure to COVID-19 in the course of employment, and proactive steps that can be taken to minimize potential future exposure in the anticipated influx of COVID-19-related claims to come. While federal, state, and local governments have taken measures to limit social interactions in public spaces, workers providing “essential services” – such as those in the health care, law enforcement, infrastructure, manufacturing, logistics, construction, and certain retail industries – continue to be at risk of exposure to the virus while working outside of their homes.
Workers’ Compensation Law § 2(7) defines “injury” and “personal injury” as “only accidental injuries arising out of and in the course of employment and such disease or infection as may naturally and unavoidably result therefrom.” Thus, mere exposure to the virus, or a direction to isolate or quarantine, without infection, would not result in a compensable workers’ compensation claim. Rather, New York employees subject to precautionary or mandatory orders of quarantine or isolation due to COVID-19 may be entitled to paid or unpaid sick leave, dependent on enumerated characteristics of the employer.
The above being said, where a public safety worker is exposed to the blood or other bodily fluids of another in the course of performing his/her duties, Workers’ Compensation Law § 10(3)(a) provides for workers’ compensation coverage of the care and treatment needed to ascertain whether the worker was exposed to or contracted any communicable disease. However, in the absence of contraction, there is no injury for which to make a claim.
As for the compensability of claims for confirmed cases of COVID-19 contraction, while each claim will need to be evaluated on a case-by-case basis depending on the specific factual allegations, they should be denied at the outset in light of the difficulty that claimants will have in demonstrating that the contraction occurred in the course of employment, given the spread and highly contagious nature of the virus. Claims for COVID-19 contraction can be considered as ones for either accidental injury or occupational disease.
Workers’ Compensation Law § 2(15) defines “occupational disease” as “a disease resulting from the nature of employment and contracted therein.” To establish an occupational disease, a claimant must demonstrate a “recognizable link” between the alleged condition and a “distinctive feature” of his/her work. An occupational disease is a condition that derives from the very nature of the employment and results from the ordinary and generally recognized risks incident to a particular occupation – not from an environmental condition specific to the place of work. As COVID-19 can be found in all environments and there is generally no recognizable link between the virus and a distinctive feature of any particular employment, COVID-19 claims should be considered as ones for accidental exposure.
New York has recognized that the contraction of an infectious disease can be an accidental injury. See Matter of Connelly v. Hunt Furniture Co., 240 NY 83 (1925) (blood poisoning through cut on hand while handling a gangrenous corpse); Matter of Drew v. Beyer, 33 AD2d 24 (3d Dept 1969) (cranio-orbital mucormycosis after inhalation of dust with musty odor). Of course, in light of its beneficial and remedial nature, the Workers’ Compensation Law is construed liberally in favor of the employee. Further, Workers’ Compensation Law § 21(1) creates a presumption that injuries that occur in the course of employment arose out of that employment and are compensable. The New York Court of Appeals has noted that whether a particular event is an accidental injury must be gauged by the commonsense viewpoint of the average person. See Matter of Johannesen v. New York City Dept. of Hous. Preserv. & Dev., 84 NY2d 129 (1994), citing Matter of Middleton v. Coxsackie Correctional Facility, 38 NY2d 130 (1975).
Notwithstanding the pro-claimant nature of New York’s workers’ compensation system, to establish an accidental injury, the claimant bears the burden of establishing, by competent medical evidence, a causal relationship between his/her employment and a disability. While a medical opinion on the issue of causation need not be expressed with absolute certainty, it must signify a probability as to the underlying cause of the claimant's injury which is supported by a rational basis. Medical opinions that are purely speculative or only consist of general expressions of possibility are not enough to support a finding of causal relationship. In light of the scope of the COVID-19 outbreak, and in the absence of the claimant’s production of evidence of specific exposure to COVID-19 while working (in which case exposure outside of work will still be impossible to exclude), medical opinions of causal relationship of contraction to work should be viewed as speculative. Thus, claimants will face an uphill battle in establishing that their COVID-19 exposures occurred during the course of employment.
Past claims for exposure to infectious diseases have been disallowed where claimants failed to establish exposure to the disease in the course of employment – including via medical evidence of consistency between the incubation period, alleged date of exposure, and onset of symptoms – and the cause of the disease was common in the community such that exposure could have occurred everywhere, all of which rendered medical opinions of causal relationship speculative.
See, e.g., Matter of Albrecht v. Orange County Community Coll., 61 AD2d 1068 (3d Dept 1978), affd 46 NY2d 959 (1979) (claim for polio by professor deemed health by a physician shortly before leaving for sabbatical in Ghana, where he died four days post-arrival, disallowed on the basis that claimant failed to prove a compensable accident by establishing contraction in the course of employment; the incubation period was consistent with contraction in Ghana, but there was no discrete event or series of events which could reasonably be deemed to mark the contraction/onset of the infection); Matter of Nassau County Police Dept., WCB # G0337646 (March 26, 2014) (death claim disallowed where claimant failed to establish that decedent EMT whose office was on the same floor as hospital’s infectious disease area contracted his mycoplasma pneumonia during the course of his employment; per IME, MP was “ubiquitous” in the community such that exposure could have occurred almost anywhere); Matter of Rockland County, WCB # G0290173 (Oct. 6, 2011) (claim for staph infection disallowed where claimant correction officer did not testify to a definite incident or exposure; claimant’s testimony to various ways he may have contracted the infection through his employment was speculative, and doctors testified that staph infections are very common); Matter of American Eagle Airlines, WCB # G0312670 (May 26, 2011) (claim for blastomycosis allegedly acquired by claimant flight attendant as a result of exposure to a fungus while in proximity to mulch used in landscaping at hotels where she stayed for overnight trips was disallowed in light of the speculative nature of the treating physician’s opinion and credible IME testimony that mulch exposure was not a risk factor for the disease and the organisms that cause it are found everywhere); Matter of Catholic Charities, WCB # G0067469 (March 3, 2011 (MRSA); Matter of Rosner Construction LLC, WCB # 00754237 (May 6, 2010) (Full Board disallowed claim for causally related death due to complications from Aspergillus, a mold found in most places that can enter the body through inhalation, in light of absence of definitive evidence of when and where the mold entered the decedent’s body, rendering the alleged work exposure “purely speculative”); Matter of Long Island Jewish Medical, WCB # 20304530 (Nov. 6, 2006) (claim for infection with group A streptococcus by patient care associate who worked in hospital ER disallowed as the bacteria was common in society and there was no evidence that claimant interacted with a patient who had it; notice was also untimely to the employer); Matter of Upstate Cerebral Palsy, WCB # 60504642 (Sept. 8, 2006) (claim for exposure to a child’s saliva at work disallowed as medical evidence did not support claim of exposure to any viral infection in the incident and incubation period was inconsistent with onset of symptoms).
On the flipside, claims for exposure to infectious diseases have succeeded where the record evidenced that claimants came into direct or close physical contact with infected individuals or their bodily fluids, the disease was endemic in the claimants’ workplace, and/or there was medical evidence of consistency between the incubation period, alleged date of exposure, and onset of symptoms. Causal relationship was also supported by credible medical evidence, as required.
See, e.g., Matter of Middleton v. Coxsackie Correctional Facility, 38 NY2d 130 (1975) (contraction of tuberculosis found compensable where claimant correction officer was exposed to persistent coughing by a tubercular inmate in his presence over a period of four months; claimant produced medical evidence of causal relationship between his work exposure and contraction, and no contrary medical evidence was produced); Matter of Gardner v. New York Medical College, 280 AD 844 (3d Dept 1952), affd 305 NY 583 (1953) (contraction of polio found compensable after sneeze in face by fellow nurse suffering from said disease); Matter of Esposito v. NYS WIllowbrook State School, 46 AD2d 969 (3d Dept 1974) (contraction of infectious hepatitis found compensable where claimant worked in a school where the infection was endemic; while there was no evidence that he came in close contact with a specific infected person, medical testimony supported that direct contact was unnecessary for transmission and that there was a strong likelihood that claimant contracted the infection as a result of work exposure); Matter of McDonough v. Whitney Point Cent. School, 15 AD2d 191 (3d Dept 1961) (contraction of mumps by a first-grade teacher with 32 pupils with whom she was in close contact during an epidemic that developed in the school was found compensable); Matter of Gaites v. Society for Prevention of Cruelty to Children, 251 AD 761 (3d Dept 1937), affd 277 NY 534 (1938) (matron contracted scarlet fever after coming into direct contact with infected children in the institution).
We note that there is an expanded theory of compensability for injuries sustained by employees while traveling on business – namely, any injury that occurs during a business trip is considered compensable, regardless of whether the claimant was engaged in the duties of employment at the time of injury, so long as the claimant was engaged in a reasonable activity at the time of injury. However, even in cases in which employees allege COVID-19 contraction during business-related travel, the claimant must establish that the contraction occurred in the course of employment. See, e.g., Matter of Donato v. Taconic Corr. Facility, 143 AD3d 1028 (3d Dept 2016) (claimant failed to establish that acute bronchitis and reactive airway disease resulted from an infection contracted while transporting a prisoner aboard a commercial flight; physician conceded that the infection could have been contracted anywhere); Matter of Spoerl v. Armstrong Pumps, Inc., 251 AD2d 915 (3d Dept 1998) (claimant failed to establish that the bacteria responsible for the decedent’s infection, staphylococci, which is common in both the United States and England, was contracted on the business trip, and neither the source of entry into the body nor the inception and progress of the disease were established with any certainty); Matter of Campus Crusade for Christ, Inc., WCB # G1127099 (August 15, 2019) (claimant failed to establish that she contracted malaria on work trip to Uganda).
Finally, in addition to claims based on exposure to or contraction of the virus, we anticipate seeing claims for mental injuries related to known or potential exposure to the COVID-19 virus while working. In New York, a mental injury precipitated by psychic trauma triggered by a claimant’s work environment is compensable to the same extent as a physical injury. A mental injury may include psychological or nervous injuries which are caused by either discrete, identifiable traumas or by prolonged unusual circumstances. With the exception of first responders, in order to constitute a viable claim premised on work-related stress, the stress must be greater than that which usually occurs in the normal work environment, which is a factual determination for the Workers’ Compensation Board. Pursuant to Workers’ Compensation Law § 10(3)(b), the stress of first responders who encounter extraordinary stress in a work-related emergency and file a claim for mental injury need not be greater than that which usually occurs in the normal work environment for the claim to be compensable.
It remains to be seen how the Board will address claims for mental injury resulting from the stress that all employees are naturally experiencing as a result of known or potential exposure to the COVID-19 virus while working. Stress due to a known exposure in the workplace will likely be considered greater than that which usually occurs in the normal work environment, and so found compensable. Stress due to concerns over a potential exposure in the workplace that proves unfounded is unlikely to be compensable, given that such stress equally applies outside of the workplace. That being said, this is certainly a unique time, and essential workers whose job duties require that they be outdoors and come into contact with object/materials and/or the public (such as delivery, construction, or transportation workers) could have compensable claims for mental stress due to concerns over potential COVID-19 exposure, particularly in light of the prevalence of the virus in New York and stern government mandates to stay home to the extent possible. The Board may very well consider stress resulting from the heightened risk of exposure attendant to working outside of the home during this prolonged, unusual outbreak to be a stress greater than that which usually occurs in the normal work environment. False alarms could also form the basis for compensable mental stress claims.
Note that an employer's failure to follow proper protocols can serve as evidence that the stress experienced was greater than that which occurs in a normal work environment. For example, in Matter of Healthcare Services Group, WCB # G0267613 (Oct. 30, 2012), the claimant, employed as a housekeeper in a nursing home, was assigned to clean an isolation room. Despite taking the normal precautions, she was exposed to contaminated wastes, and the employer failed to take immediate protective measures, denied her release for immediate baseline testing, and delayed information about the nature of her exposure. The Board found that, under these circumstances, the stress experienced by the claimant was greater than that which occurs in the normal work environment, and established the claim for a work-related injury involving exposure to a potential communicable disease resulting in mental injury of anxiety and depression. See also Matter of British Airways, WCB # 00358162 (Sept. 28, 2005) (PTSD claim found compensable where claimant, an airport customer service agent, was asked to escort a passenger suspected of having SARS from the gate to another area of the airport; while the passenger was cleared of SARS, the Board found that the lack of instruction to the claimant and her lack of knowledge regarding handling of SARS situations created stress greater than that which normally occurs in the usual work environment).
Thus, an employer’s compliance with government guidance regarding protective measures to reduce the risk of worker exposure to COVID-19 and response to a reported workplace COVID-19 exposure will be a factor in the Board’s determination of whether a claim for mental injury due to such exposure is compensable – i.e., whether the stress experienced by the claimant was greater than that which usually occurs in the normal work environment. Accordingly, employers should follow federal, state, and local guidance regarding protective measures to reduce the risk of worker exposure to COVID-19, and responsive action to be taken upon becoming aware of a potential workplace exposure. Employees should be made aware of these protective measures and employers’ preparedness to address exposure situations should they arise.
For workers’ compensation claim mitigation purposes, employers should have policies and procedures in place for prompt identification and isolation of potentially infectious employees; prompt employee reporting of symptoms, illness, and COVID-19 diagnoses; prompt employee notification of potential workplace exposures; and prompt sterilization of any potentially infected areas of the workplace. Sick/symptomatic employees should be encouraged to stay home, and employees concerned about a workplace exposure who wish to seek medical attention should not be discouraged or prevented from doing so.
Notwithstanding the foregoing, claims for mental injury should still be addressed case-by-case and denied at the outset pending development of the record regarding the claimant’s prior psychiatric/psychological conditions and treatment, and with IME opinions on diagnosis and causal relationship.
Most if not all COVID-19-related claims should be denied at the outset, leaving the burden of proof on the claimant to establish the required elements of compensability – generally, accident, notice, and causal relationship. Note that in accidental exposure cases, notice to the employer pursuant to Workers’ Compensation Law § 18 must still be provided within thirty days of the date of accident, which will be set by the Board. Potential dates of accident include the date of last exposure, the date the claimant first noticed symptoms, the date the claimant first sought medical treatment, the date of first definitive diagnosis, or the date that the claimant stopped working due to the virus. Therefore, in addition to causal relationship, untimely notice is a potential defense to COVID-19 exposure claims. As usual, however, the Board can excuse a claimant’s failure to provide timely notice where it finds that the claimant had sufficient reason for failing to provide timely notice, the employer had actual knowledge of the accident, or the employer was not prejudiced by the lack of notice.
Upon being notified of a COVID-19-related claim, as with all claims, it is important that employers conduct a prompt investigation, including obtaining written statements from the claimant and any potential witnesses; preserving any video footage and documentary evidence potentially relevant to the employee’s allegations regarding when, where, and how the exposure occurred; gather any evidence of exposures in or outside of the workplace; preserve current data regarding the prevalence of COVID-19 in the workplace and its surrounding area, as well as in the area where the claimant resides; obtain any records of the claimant’s medical treatment; and, eventually, once all necessary information is secured, obtain a medical opinion from an infectious disease specialist regarding the causal relationship of the contraction to employment.
Of course, all of the above is subject to change should Congress or New York State take steps to expand workers’ compensation coverage for workers impacted by the COVID-19 outbreak. For example, Kentucky and Washington State have taken steps to provide workers’ compensation coverage for health care workers and first responders ordered into quarantine for COVID-19 exposure. New York State has yet to take any such action to date, but we will keep you apprised of any new developments.
In the interim, we recommend consulting with defense counsel upon receipt of any new COVID-19-related claims, and erring on the side of denial. We also recommend against commencing payment of voluntary indemnity benefits in established claims where claimants are conveniently taken back out of work for alleged causally related reasons just as the Governor ordered closure of non-essential businesses and employers are commencing layoffs, particularly where there has been no reported change in the claimant’s clinical examination findings. Work stoppages during this time may very well be related to the COVID-19 crisis rather than a claimant’s established injuries, and if unrelated, the claimant would not be entitled to indemnity benefits. Development of the record regarding the causal relationship of the claimant’s work stoppage, including whether the claimant simultaneously applied for leave or unemployment benefits, is warranted prior to payment of indemnity benefits post-work stoppage. Voluntary payments can always be initiated down the road as circumstances change and the Board issues further guidance on these issues.
Please click here for guidance in addressing New York workers’ compensation claims filed by employees injured while working from home, a situation that has greatly expanded due to the COVID-19 outbreak.
