WORKERS’ COMPENSATION LIABILITY FOR INFECTIOUS DISEASES IN THE NEW ENGLAND STATES
We have recently received questions from many employers and insurers regarding how to handle claims involving coronavirus/COVID-19.
The analysis of compensability for infectious disease differs between each state.
Such claims require close investigation of the actual exposure to the virus and the nature of the particular employment, as well as legal analysis of complex causation standards.
All claims involving COVID-19 should be assessed on a case-by-case basis and our attorneys are ready to assist you with any questions concerning compensability.
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Massachusetts
In Massachusetts, the contraction of contagious or infectious disease is not considered a compensable injury unless the risk of exposure is “
inherent in the workplace
”. Section 1(7A) contains a provision which states if the nature of the employment is such that the hazard of contracting such infectious or contagious diseases is inherent in the employment, then disability resulting from the disease is compensable. See M.G.L. c.152 §1(7A). Therefore, there is by statute limited exposure for employers and insurers for disability and medical expenses as a result of exposure to an infectious disease including COVID-19 in the workplace. Even if an exposure may have occurred in the workplace, unless the risk of exposure is “inherent” in the actual workplace environment it is not a compensable injury by the limiting language in the statute.
This would be the case for traveling employees as well as those attending seminars – there may be a work related possible exposure to an infectious disease while in the course of one’s employment but the language in the statute limits the liability to those who are exposed because the risk was inherent in the workplace.
As a result, for most employments, coronavirus/COVID-19 would not be considered a compensable personal injury. As noted above, § 1(7A). The most obvious example of such employment is the healthcare field (i.e., doctors, nurses, CNA’s, phlebotomists, pulmonary therapists, physician’s assistants, administrative and custodial staff at healthcare facilities). In such cases, the employee must still prove that an exposure occurred in the workplace (i.e., a patient or co-worker testing positive for COVID-19). Thus, the test is two-fold: (1) an exposure occurred at work, and (2) the risk is inherent in the employment.
For employments where the risk of contracting the COVID-19 is not inherent, a claim would be non-compensable in Massachusetts even if the employee could prove the exposure actually occurred at work. In
Lussier v. Sadler Brothers, Inc.
, 12 Mass. Workers’ Comp. Rep. 451 (1998), an employee’s claim for tuberculosis was denied despite uncontroverted evidence that she contracted the disease from an infected co-worker. The Reviewing Board denied the claim because the employee worked as a machine operator and the risk of contracting tuberculosis was not inherent in her employment, even though she did in fact contract the disease at work. The Reviewing Board reasoned, “We consider that the danger of exposure to germs from co-employees while working in close contact is a condition common and necessary to a great many occupations. Although it is undisputed that [the employee] contracted tuberculosis in the work environment, that fact is not enough. . . . If it were, every bout of the flu contracted at work, resulting in more than a five days’ absence from work would be a personal injury under the Act.”
Id
. at 452.
Note: If denying an infectious disease claim, use Form 104 in Massachusetts and list Section 1(7A) as a defense and add “not inherent in the workplace” along with any other defenses listed.
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New Hampshire
In New Hampshire, injuries that result from a “neutral risk” are generally deemed non-compensable. Neutral risks are risks that are the same as the general public. See
Appeal of Margeson
, 162 N.H. 273 (2011).
The New Hampshire statute includes “occupational disease” as a compensable injury. The definition of “occupational disease” is 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.” See RSA 281-A:2(XIII). Arguably, the “occupational disease” provision will not apply to any cases of COVID-19, as the risk of contraction is not “characteristic of and peculiar to” the employment. Perhaps a healthcare worker could make an argument that the occupational disease provision applies, but even in such employment, the virus itself is arguably not “characteristic of and peculiar to” the employment.
In most cases, the contraction of COVID-19 would be considered a neutral risk and generally non-compensable. An employee could theoretically shift the claim to a “personal risk” if they can prove a specific identifiable exposure within the work setting. The evidentiary burden on such a case would be very difficult for an employee to meet. Generally, COVID-19 will be considered a neutral risk, and New Hampshire case law supports the utilization of the increased-risk test for neutral risk cases. Under the increased-risk test, an employee may only recover benefits if the injury results from “a risk greater than that to which the general public is exposed.”
Appeal of Margeson
, 162 N.H. 273, 283 (2011). Thus, again the employee would be required to prove that his/her risk of contracting COVID-19 was greater than the general public’s risk. Healthcare workers are likely the only employees that may be able to establish this, but each claim must be evaluated on a case-by-case basis.
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Connecticut
In Connecticut, infectious diseases are generally not considered compensable. The exception to this general rule is occupational diseases which the statute defines as “any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazard of employment.” C.G.S. § 31-275(15). Case law has interpreted this provision to mean that occupational diseases are those diseases in which there is a causal connection between the duties of the employment and the disease contracted by the employment. The disease need not be unique to the occupation, but the disease needs to be distinctively associated with the employee’s occupational that participation in employment activities increases the risk of exposure to the occupational disease. See
Estate of Doe v. Department of Correction
, 268 Conn. 753 (2004).
As with all cases, the employee will still have the burden of proving causation (i.e., that the employment is a substantial contributing factor to the disease). Based on current case law, some healthcare workers directly caring for patients with COVID-19 may be able to pursue a claim under the occupational disease statute if they are able to support their claim with medical evidence.
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Rhode Island
Rhode Island follows the “actual-risk” doctrine, which means that an employee must show that the injury arose out of an actual risk of employment. In claims of infectious disease, the employee must prove that the contraction of the disease is an actual risk of the employment. “In order to establish a predicate for application of the actual-risk theory, the employee would be required to sustain the burden of showing that this risk, even though common to the public, was in fact a risk of his employment.”
Dawson v. A & H Mfg. Co.
, 463 A.2d 519, 521 (R.I. 1983). This doctrine could potentially apply to healthcare workers, but for nearly all other employments COVID-19 should be considered non-compensable.
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Vermont
Vermont is a “positional-risk” doctrine jurisdiction. The positional risk doctrine holds that an injury is compensable if it would not have occurred but for the fact that the employment placed the employee in the position where he/she was injured. Thus, if the injury occurred at work, it is generally accepted as work-related, regardless of the risk to the general public. This doctrine is certainly a lower standard than some of the other jurisdictions; however, in cases of infectious diseases, an employee is still required to prove how and when they were infected.
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Maine
Maine also utilizes the “positional risk” doctrine. As noted above, the positional risk doctrine holds that an injury is compensable if it would not have occurred but for the fact that the employment placed the employee in the position where he/she was injured. Again, in order to prove a claim for COVID-19 under the positional risk doctrine, an employee would be required to prove that they were at work when they contracted the virus.
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CONCLUSION
The compensability of coronavirus/COVID-19 is a complex question involving varying evidentiary tests between the states and fact-intensive investigations of each case.
There is no comprehensive answer to the compensability question on COVID-19, and each claim must be evaluated on a case-by-case basis.
Our attorneys are ready to review any case you may have and assist you with your compensability determination.
CONTACT US
Questions or concerns regarding this memorandum, please contact Robert Martin at
[email protected]
or Vincent Tentindo at
[email protected]