COVID-19 Exposure at Work: Can Employees File a Lawsuit?

While many companies are still allowing their employees to work from home,? a significant number of employers have asked their employees to report to work, increasing the number of employees contracting COVID-19 on the job.?

Now, if the employees claim to have been exposed to COVID-19 at work, are they entitled to workers’ compensation benefits??

Without a doubt, COVID-19 has had a major influence on workers’ compensation insurance.?

Though workers’ compensation laws vary greatly per state, they all have one thing in common: they only provide compensation for occupational diseases that arise out of and in the course of employment, with many statutes expressly excluding ordinary diseases of life such as the common cold or the flu. Workers with qualified workers’ compensation claims may be eligible for certain benefits, such as wage loss compensation, medical and rehabilitation benefits, and a funeral allowance in the event of the employee’s death.?

Proving the exact location where someone got the coronavirus can be difficult.

Because of the nature of COVID-19ーspreads easilyーworkers claiming that they contracted the coronavirus on the job would normally face a difficult battle to show that they caught it while at work.?

To help out certain workers overcome this burden of proof, many states have permitted industry-wide exclusions for jobs where workers are considered essential and may be at high risk of contracting COVID-19 on the job. These states have established a legal presumption that workers in certain industries who come into contact with the coronavirus did so in the course of their employment, making it easier for them to claim workers’ compensation.?

The presumptive laws in many states cover only health workers and first responders. Some establish a wider coverage of covered employees, including grocery store workers, delivery service personnel, warehouse workers, farmworkers, and teachers. The workers covered by the presumptive law are presumed to have contracted the coronavirus at work and can claim workers’ compensation benefits unless the insurer or employer can disprove that presumption that the employee’s infection was not work-related. The employer now has the burden of providing evidence that the employee was not exposed to COVID-19 while at work.

What about those employees who are not covered by the presumptive laws??

Workers who believe they have contracted COVID-19 on the job but are not covered by the presumptive laws can still make claims and should notify their employers as soon as possible.

Jeff Eddinger, senior division executive of the National Council on Compensation Insurance (NCCI) told Fortune, “State laws do differ, but if an employee can show that they contracted COVID In the course of their employment, then their claim will be paid.”

So far, data from the insurance industry reveals that the vast majority of workers’ compensation claims filed by workers infected with Covid-19 but without a legal presumption of compensability have been denied. As the employers have been able to prove that they have properly established safety protocols, some of the claims from workers covered by the presumptive laws were also denied.

What to do when a workers’ compensation claim is denied?

When a workers’ compensation claim is denied, it is important to know the reason why.?

Workers’ compensation claims may be denied for the following reasonsーillness not reported on time, claims not filed on time, employer disputes claim, no medical treatment, and insufficient evidence that illness is work-related.?

Being denied a claim might be upsetting, but it doesn't have to be the end of the story. Employees are given the right to contest the claim denial.??

Employees may also opt to meet the employers before launching an appeal to determine whether the dispute is easily resolved.?

If the employees still want to appeal the decision, they should bear in mind that it can be a complicated legal process.?

Instructions as to how employees can appeal the decision, the deadline for filing of the appeal, and the workers’ comp insurance coverage should be included in the denial letter received.?

State deadlines are usually between 30 to 90 days. It is important not to miss the filing deadline for the appeal as it can end any chances of getting compensation.

The method for filing an appeal varies by state, but it usually requires a hearing before an administrative law judge, either through the labor department or the state workers' compensation board.?

Because of the complicated nature of the appeals process, it is best handled by an experienced legal professional.?

Can the employees expose to COVID-19 at work file a lawsuit against their employers?

If the employer has not taken the right precautions to limit the spread of COVID-19 at work, most of the time, employees are limited to filing workers’ compensation claims rather than a personal injury lawsuit.?

The workers' compensation system is a compromise: On the one hand, employees can collect compensation for a work-related accident or illness immediately without having to establish that the employer was at fault.? On the other hand, worker’s comp is the employees’ “exclusive remedy,” this means that they can’t sue their employer for the losses from the injury including pain and suffering.? This is true even if the employees’ workers’ comp claims have been denied because the employee cannot prove that the disease was contracted while at work.?

Nonetheless, there are a few exceptions to the workers' compensation exclusive-remedy rule. Many states, for example, allow employees to sue outside of the workers' compensation system if they were hurt or were ill on the job as a result of the employers’ intentional wrongdoing rather than mere negligence.

Employers ignoring basic safety protocols and deliberately putting their employees in harm by penalizing them for wearing their face masks or taking time off when they’re sick, do not necessarily mean that the “intentional wrong” exception would apply. The employees’ capacity to circumvent the exclusive-remedy rule is determined by state law as well as how judges interpret the law in the unique setting of the COVID-19 pandemic.

In some states, laws were passed to protect employers from COVID-19 lawsuits provided that they complied with the applicable federal, state, or local regulations, orders or laws. Some of these laws primarily affect healthcare providers, while others extend the liability shield to all employers.?

If the employees contracted COVID-19 on the job or believe they have a good reason to sue their employers due to their employers' conduct regarding the COVID-19 pandemic, they should seek help from experienced legal professionals who can explain the options for seeking compensation for the losses the employees have suffered, whether from contracting the disease at work or from taking precautions to avoid contracting the disease.

The COVID-19 pandemic has challenged and will continue to challenge businesses. A company’s best line of defense against workers’ compensation claims is to stay informed and compliant with the industry and regulatory changes.?