Are Employers Responsible for Employees Contracting COVID-19?
As more workers are venturing back into the workplace, many are concerned about their risk of COVID-19 infection as the coronavirus case counts continue to rise.
Should you contract COVID-19 at the workplace, you may be able to receive benefits through workers compensation. Workers’ compensation is an insurance program managed by the state. It provides pay and medical benefits to employees who have a work-related injury or illness. Not all employers provide workers’ compensation insurance, but most do. When an employee is injured or becomes sick because due to a work-related injury or illness, the “exclusive remedy” available is usually through workers compensation insurance.
There are exceptions, however, to the exclusivity rule. These exceptions vary from state to state, but they generally include circumstances in which:
- the employer doesn’t have workers’ comp insurance
- someone other than the employer caused the illness, or
- the employee became ill due to circumstances beyond the employer’s simple negligence, such as an intentional act or gross negligence on behalf of the employer.
In some states, the “intentional act” exception doesn’t apply unless the employer’s actions were specifically intended to harm employees. That could be nearly impossible to prove in the case of an employer’s failure to provide enough protection from a highly infectious disease like COVID-19.
In other states, the standards for the exception are more nuanced. For example, the Texas courts have held that the employer doesn’t necessarily have to mean to cause harm; instead, the exception may apply when there was a “substantial certainty” that the employer’s actions would result in injury or death.
One arguable example of gross negligence would be an employer who called its employees back to work and required them to work in close proximity to each other. Note, however, it is up to the injured employee to prove that the virus was likely contracted at work, and that could be a difficult hurdle to overcome as more businesses open and cases continue to rise. Even then, there are questions about whether certain claims would be granted.
Under the workers’ compensation program, an illness is covered only if it is contracted in the context of someone’s job. Illnesses such as the flu, which are referred to as “ordinary diseases of life,” typically aren’t covered. Whether COVID-19 is considered an ordinary disease remains an open question.