Without exception, there is one question I’ve received more than any other in recent months: Do I have a work comp claim against my employer if I get COVID-19 at work?
Short answer: Possibly
a. Personal Injury Claim
To explain why, it’s first important to understand the nature of the claim from the onset. Even prior to The Pandemic, a personal injury claim against an employer was a rarity. In Ohio, an employer is liable for an injury sustained at the workplace only when the employer acted “with the intent to injure another or with the belief that the injury was substantially certain to occur.” R.C. 2745.01. This exceedingly high bar requires an injured employee to prove the employer intentionally sought out to inflict harm or, as defined by the Ohio legislature, to act “with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.” Id.
A further reading of the law seems to provide an opening when an employer’s conduct is particularly egregious in flouting COVID-19 mandates. Specifically, an employer may be liable for injury when the employer removes “an equipment safety guard” or makes a “deliberate representation about a toxic or hazardous substance.” Id. At this stage, nearly six months into The Pandemic, most have heard some horrific anecdote about an employer’s bad behavior—from forcing employees to remove masks to intentional misinformation about its spread within the company and everything in-between. Do these type of scenarios open the door for liability? If an employee is forced to take down a glass barrier protecting her from an upper respiratory disease, should that not be considered removal of an equipment safety guard?
So we know that because of the need to establish liability, or the requirement to find fault, the short answer is no. The Ohio Supreme Court has adopted a narrow interpretation in applying the above exception by limiting the term “safety guard” to “a device designed to shield the operator from exposure to injury by a dangerous aspect of the equipment.” See Hewitt v. LE. Myers Co. 2012-Ohio5317. As such, removing a glass barrier or any form of PPE from an employee unequivocally increases the likelihood of contracting COVID-19. However, it does not subject the employee to a dangerous component of a piece of equipment.
b. Workers’ Compensation Claim
With the answer of a personal injury claim nixed, and not a viable option, what about workers’ compensation, where there is no such requirement of proving fault whatsoever? While not an emphatic “no”, nor an emphatic "yes", the best answer at this time, is a "maybe".
As with COVID-19 itself, there are a myriad of moving parts involved. Prior to the flurry of proposed local, state, and federal emergency legislation, the answer was clear—workers’ compensation was an available avenue when an employee became disabled after contracting an occupational disease. See R.C. 4123.01(F). The legislature provided an exhaustive schedule of what an “occupational disease” is and is not under R.C. 4123.68. The list of diseases is effectively dispositive although some illnesses not expressly listed, like emphysema or chronic bronchitis, may be compensable if a causal link is established.
In one piece of emergency legislation, The Ohio House proposed adding COVID-19 as an occupational disease for frontline workers. See H.B. No. 606. Specifically, the amendment included “a presumption, which may be refuted by affirmative evidence, that COVID-19 was contracted in the course of and arising out of the employee’s employment.” Am.Sub.H.B.No.606 As Passed by the House. However, The State Senate omitted this amendment in passing its own version of the bill. Sub.H.B.No.606 As Passed by the Senate. While not yet signed into law, this version is silent on any available remedies for workers through workers’ compensation. The final version (proposed as temporary or uncodified law) is expected to be signed by The Governor in early September, 2020.
If we have learned one thing from this year, it’s just how much can change week-to-week, sometimes even day-to-day. Currently, limited recourse is available for a worker who contracts COVID-19 while on the job. This may seem appropriate when a worker successfully recovers and returns to the job within a reasonable timeframe. However, this will not always be the case. We are actively learning just how pernicious this disease may be for long-term health. What about future complications from COVID-19? Or those that suffer from a protracted illness with symptoms that persist much longer than two weeks? Is there an effective avenue of recovery?
In short, it is possible. Therefore, I would be of the opinion that anyone who has contracted the disease, where it can be easily be established that the work environment was where Covid was contracted, to file a work comp claim and pursue the benefits. There is no penalty for filing a claim that turns out to be denied. With all denials going through the appeals process, some of the claims will be allowed and successful.
But not filing a claim guarantees no chance and ZERO benefits.
BOTTOM LINE: COVID due to WORK? FILE A BWC (work Comp claim).