When an employee contracts COVID-19, one question employers are grappling with is whether the employee’s COVID-19 diagnosis will be a compensable workers’ compensation claim. The answer to that question will depend on the workers’ compensation laws in the state where the employee is located.

Generally, in order for an employee to have a compensable workers’ compensation claim, there must be an injury or occupational disease that occurs at work and/or arises out of employment. Almost every state would utilize this standard to determine whether contraction of COVID-19 occurred in the workplace and thus could give rise to a workers’ compensation claim. However, many state workers’ compensation statutes exclude “ordinary diseases of life” (for example, the flu) from being considered compensable occupational diseases.

For example, in Nebraska, an occupational disease excludes diseases that are ordinary diseases of life where the general public is exposed. As such, the nature of the COVID-19 virus spreading throughout the general public would generally preclude COVID-19 from being considered an occupational disease in most workplaces. Health care workers and first responders may have a better chance of showing they contracted the disease in the course of their work; however, it would still be difficult to show that the disease was contracted from work as opposed to an outside source, so it remains uncertain in Nebraska whether the disease is compensable even in such a setting.

Employers should be aware that several states are taking action to ensure workers’ compensation protection for workers during the COVID-19 pandemic. California’s Governor enacted an executive order creating a temporary rebuttable presumption for certain COVID-19-related workers’ compensation claims. Where the employee tested positive for or was diagnosed with COVID-19 within 14 days after the employee performed services at the employee’s place of employment at the employer’s direction between March 19 and July 5, 2020, the employee’s COVID-19-related illness shall be presumed to arise out of and in the course of employment for purposes of awarding workers’ compensation benefits. Employers can rebut the claim by providing evidence that the worker contracted COVID-19 elsewhere, but providing any such evidence may be difficult. Further, Minnesota passed a law that provides a rebuttable presumption of an occupational disease for COVID-19 workers’ compensation claims by certain qualified employees, including first responders, health care workers, and child care providers of first responders and health care workers. In such case, the employee must confirm contraction of COVID-19 via a positive lab test or a diagnosis from a proper health care provider. The presumption is rebuttable only by a showing that the employment was not a direct cause of the disease. This law is effective until May 21, 2021 for employees who contract COVID-19 on or after April 9, 2020.

While some states have taken drastic approaches in addressing workers’ compensation claims due to COVID-19, it remains to be seen how or whether other states will respond to COVID-19 in relation to their current workers’ compensation laws. As of June 23, 2020, 37 states and the District of Columbia have not implemented any amendments or guidance that take into account COVID-19 when dealing with workers’ compensation claims, including states such as Nebraska and Iowa. Without specific guidance and authority addressing COVID-19, most employees will have a difficult time establishing a compensable claim. If you have any questions regarding workers’ compensation and COVID-19, please contact a member of Koley Jessen’s Employment Group.

^{Special thanks to our Summer Associate, Jake Walker for his help in writing this article.}

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