Causation can be a tricky issue for infectious diseases in workers’ compensation cases. For a disease like COVID-19, you don’t need to be an epidemiologist or an infectious disease specialist to recognize the challenge of proving a worker contracted COVID-19 on the job. Absent rare circumstances or expensive and time-consuming methods, such as contact tracing utilized by Departments of Health and the Centers for Disease Control, there is no easy way for the average employee to rule out alternative non-work-related causes for a COVID-19 diagnosis.
The reason for this is the reality of the disease itself. Simply put, COVID-19 is not exclusive to the workplace. It is just as easy to pick up the virus while at home, going on essential errands, or while out exercising. Vectors of the disease are not limited to the workplace and transmission can occur through family members or friends; preliminary testing even shows some household pets can be carriers for COVID-19.
The unpleasant reality of the disease means that there are some real hurdles for employees seeking to prove they contracted COVID-19 while on the job. However, unlike COVID-19 for which we are still seeking a treatment, laws can be amended quite easily, and these hurdles for proving causation, although based on science and logic, can be removed.
For employees who are going above and beyond during this pandemic, who are risking their lives to save others, there is well-deserved public support. There is also public pressure for state governments to take action to “do something” in response to the pandemic. These pressures have led legislatures and governors across the country to begin crafting laws and executive orders for COVID-19 presumptions. Several states such as Alaska, Florida, Michigan, and Wisconsin have enacted laws creating a presumption limited to first responders. Others like Kentucky have created broader presumptions applying to essential employees which includes rape crisis employees, national guard, domestic violence shelter workers, child advocacy and childcare workers, and grocery store employees. Some states have gone even further: on May 6, 2020 California Governor Gavin Newsom signed Executive Order N-62-20 creating a workers’ compensation COVID-19 presumption for all California employees. New Jersey is currently considering similar legislation. For employees covered by these laws, the burden of proof on causation is lowered or eliminated entirely following diagnosis of COVID-19.
While often well intended, this rush to legislate may not actually benefit employees in the long run. Presumption legislation tends to be both overbroad, covering employees who may not have any actual contact with the public, as well as under broad, leaving out employees whose jobs are not often the subject of public attention, such as bus drivers or store clerks.
Attempts to “futureproof” legislation creates even more problems: in Pennsylvania, legislators are considering an ambitious bill which would apply not only to the current COVID-19 pandemic but also to any infectious disease contracted during a future pandemic. Such overbroad legislation, applying to any “infectious disease” could arguably provide workers’ compensation coverage to someone who gets a non-work related foodborne infectious disease such as E. Coli or Botulism or even a sexually transmitted infectious disease like Gonorrhea or Chlamydia. Such flawed and hastily wrought legislation inevitably brings legal challenges.
In Illinois, an emergency amendment creating a COVID-19 presumption for employees of essential businesses was challenged in court by a consortium of private retailers and manufacturers. The plaintiffs were successful in obtaining a Temporary Restraining Order and the amendment was subsequently repealed.
Employers and insurers have good reason to be wary of COVID-19 presumption laws and to consider further legal action. These laws are trending to create tremendous new liabilities nationwide, negating previously negotiated policy contracts and overwhelming insurance reserves. In cases where the laws are poorly conceived, the presumption runs counter to epidemiology and even commonsense notions of fairness. On a legal basis, the laws may not withstand sustained scrutiny as to their constitutionality. It is anticipated that in the growing number of states with such poorly conceived laws, as in Illinois, further legal action will be necessary to challenge these laws and obtain relief.
Chartwell Law represents the interests of insurers and employers, as such, we continue to continue to monitor the legal landscape. Visit our interactive map for the latest new and proposed state legislation throughout the country.
If you have any questions about issues associated with COVID-19, our attorneys are available to help. Please contact your Chartwell Law attorney or email us at Covid19WC@chartwelllaw.com.
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