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Vermont and New Hampshire Workers’ Compensation – Infectious Disease / COVID-19

New Hampshire
Vermont
March 20, 2020
March 20, 2020
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In New Hampshire, under RSA 281-A:2, an “occupational disease” is defined as an injury arising out of and in the course of the employee's employment and due to causes and conditions characteristic of and peculiar to the particular trade, occupation or employment. It shall not include other diseases or death therefrom unless they are the direct result of an accidental injury arising out of or in the course of employment, nor shall it include either a disease which existed at commencement of the employment or a disease to which the last injurious exposure to its hazards occurred prior to August 31, 1947.

To date, there is limited New Hampshire case law that is on point in regard to infectious disease.  However, in interpreting RSA 281-A:2, an employee in New Hampshire who contracts COVID-19 will be found to have likely suffered a compensable workers’ compensation injury, if it is established that an on the job condition that is specific or peculiar to the particular industry or trade exposed the employee to the infectious disease.  Such examples would undoubtedly include health care professionals and first responders who are more likely to be exposed to COVID-19, during the course and scope of their employment.

In conclusion, determining the compensability of employees who contract COVID-19 needs to be analyzed on a case-by-case basis.  As the number of patients continue to rise with the virus spreading rapidly and with most employers instructed their employees to work remotely, it will become increasing difficult to for an employee to prove that he or she contracted the virus during the course and scope of their employment.

In Vermont, under 21 V.S.A. Section 601 (23), an occupational disease is defined as a disease that results from causes and conditions characteristic of and peculiar to a particular trade, occupation, process, or employment, and to which an employee is not ordinarily subjected or exposed outside or away from the employment and arises out of and in the course of the employment.  Under this statute, a Vermont employee who contracts COVID-19 would have a more difficult time successfully asserting their illness as work-related since the employee is subjected and exposed to the virus outside and away from their employment.  Like in New Hampshire, a Vermont employee would have to establish that he or she contracted COVID-19 as a result of the specific characteristics relating to their industry or occupation.  

Vermont, however, does take it a step further with regard to protecting first responders.  Under 21 V.S.A. Section 601 (11)(H)(i), firefighters and members of a rescue or an ambulance squad, disability or death resulting from lung disease or an infectious disease either one of which is caused by aerosolized airborne infectious agents or blood-borne pathogens and acquired after a documented occupational exposure in the line of duty to a person with an illness shall be presumed to be compensable, unless it is shown by a preponderance of the evidence that the disease was caused by nonservice-connected risk factors or nonservice-connected exposure. The presumption of compensability shall not be available if the employer offers a vaccine that is refused by the firefighter or rescue or ambulance worker and the firefighter or rescue or ambulance worker is subsequently diagnosed with the particular disease for which the vaccine was offered, unless the firefighter or rescue or ambulance worker's physician deems that the vaccine is not medically safe or appropriate for the firefighter or rescue or ambulance worker.  Here, first responders who contract COVID-19 due to their exposure to other sick individuals by way of their profession would likely have a presumptively compensable workers’ compensation claim unless it is shown that they contracted the virus by a nonservice-connected exposure.

In conclusion, determining the compensability of employees who contract COVID-19 needs to be analyzed on a case-by-case basis.  As the number of patients continue to rise with the virus spreading rapidly and with most employers instructed their employees to work remotely, it will become increasing difficult to for an employee to prove that he or she contracted the virus during the course and scope of their employment.