State and federal agencies have started to address whether COVID-19 can or should be considered “work-related” in essential workers, whether the illness is compensable under a state Workers’ Compensation Program, and if the government should shield employers from potential liability associated with business-related COVID-19 illnesses in employees or clientele (e.g., customers and subcontractors).
Although OSHA excludes colds and influenza from being a work-related and recordable illness (see 29 CFR 1904.5(b)(2)), on April 10, the agency issued interim guidance suggesting that employers of front-line workers like first responders and healthcare professionals are still required to make such work-relatedness determinations regarding COVID-19. The interim guidance also indicates the agency will not enforce its illness recording provision for other employers unless:
- There is objective evidence that a COVID-19 case may be work-related (e.g., when a number of cases develop among employees who work closely together); and
- The evidence is reasonably available to the employer.
In May, California Gov. Newsom announced Workers’ Compensation benefits and signed an Executive Order making an employee's COVID-19 diagnosis de-facto work-related, especially if the employee works in an essential industry. Although the California order contains a "rebuttable presumption," meaning an employer can contest the finding, it places additional burdens on essential industry businesses.
For the most up-to-date information, please see Ogletree law firm’s analysis of state-by-state COVID-19 Workers’ Comp coverage.
Additional information on the OSHA interim guidance prepared by Ogletree law firm.
Mid-April Update
In mid-April, the Illinois Workers' Compensation Commission (IL-WCC) approved an emergency rule allowing "essential" workers diagnosed with COVID-19 to presume it was contracted at work and receive coverage under the state's Workers Comp program. "Essential" industries are defined under Illinois Executive Order 2020-10 and can be construed to include road construction and maintenance. Two weeks later, in response to potential litigation, IL-WCC rescinded the emergency rule. More recently, however, a number of states are considering expanding the definition of frontline worker beyond healthcare employees and using legislative and executive orders to create a legal presumption that COVID-19 infection is work-related for essential workers
Reopening Reviews
During state reviews of reopening the economy, businesses are pushing the Trump Administration and Congress to shield companies from potential liability associated with customers or employees who contract coronavirus and accuse the business of being the source of the viral infection. While it is plausible that a presumptive Workers’ Comp finding that an employee’s COVID-19 illness is work-related preempts further employer liability, such a liability shield would not necessarily extend to interactions between the employer (and its employee) and the general public. For a more in-depth analysis of this issue, please see coverage in The New York Times.