Potential Employer Liability for Employee Claims Related to COVID-19
As businesses start opening their doors, employers and employees alike are left wondering what liability an employer might face if an employee alleges she contracted COVID-19 at work. Assuming all other conditions of liability are met (i.e. there exists an employer-employee relationship and the “injury” occurs in the course of and arises out of employment), the employee’s exclusive remedy against the employer is worker’s compensation benefits. As to whether these benefits will actually be available to an employee alleging she contracted the virus at work, the answer is “maybe” and depends on many factors as discussed below.
The Wisconsin Worker’s Compensation Act (the Act) covers injuries that are sustained while an individual is in the course and scope of their employment. An injury is defined as any mental or physical harm caused by an accident or disease. The Act covers both traumatic injuries (e.g. falling off a roof and breaking your ankle) and occupational diseases (condition resulting from exposure over a period of time to some employment related “hazard”). Typical occupational disease claims include claims for spinal conditions caused by repetitive motion over a period of time or claims for hearing loss caused by exposure to loud noise over a period of time. Occupational disease claims can also include claims for respiratory diseases. Accordingly, in theory, claims for COVID-19 would be covered under the Act.
However, the hurdle for employees will be in proving that the disease was contracted at work. In order to pursue a worker’s compensation claim, employees must have medical support for the claim. That is, a physician must give an opinion on the diagnosis and opine, “to a reasonable degree of medical certainty,” that the occupational exposure is what caused the condition. The employee’s line of work, the employee’s practices outside of work, the employer’s policies in place to protect the spread of the virus at work, and whether the employee was exposed to a co-worker who had the disease, are just a few of the considerations that would be given to this determination. Given the widespread risk of contracting the virus in the general public, it is difficult to imagine an employee successfully proving that the virus was contracted at work.
Of note, the legislature carved out an exception, which theoretically would make it easier for first responders to prove that the virus was contracted in the course of their employment. Wisconsin passed 2019 Wisconsin Act 185 (Act 185), which created a rebuttal presumption that first responders (firefighters, law enforcement, medical or other emergency services) who contract COVID-19 after being exposed to individuals with confirmed cases of the virus in the course of their employment, contracted the virus at work. Employers can rebut this presumption with evidence that the injury was caused by exposure to the virus outside of work.
Arguably, the fact that the legislature carved out this exception for first responders would indicate that other employees will have a more difficult time pursuing worker’s compensation benefits for COVID-19 claims. Certainly, those employees will not have the benefits of a presumption that the virus was contracted in the course of their employment. However, only time will tell how difficult it will be for these other employees to pursue worker’s compensation benefits for COVID-19 cases.