State Workers’ Compensation Systems Deal with COVID-19 Claims

11 May 2020 Blog
Author(s): Scott T. Allen
Published To: Coronavirus Resource Center:Back to Business Labor & Employment Law Perspectives

A number of  states, including California (by executive order on May 6, 2020), have made it easier for essential workers who contract COVID-19 to obtain workers’ compensation benefits by creating a rebuttable presumption that the infection occurred at work.  This flips the traditional burden of proof on workers to establish that an illness or injury is work-related.

States have addressed this issue with a range of approaches, with many states taking no action and others enacting (or considering) legislation or issuing executive orders.  For example, Wisconsin and several other states have enacted a rebuttable presumption that extends only to health care and emergency response employees.  In contrast, other states, such as California, have issued orders covering all or nearly all “essential” employees who are required to work outside of their homes.  Business groups have generally opposed these changes and, in Illinois, for example, the state workers’ compensation agency repealed a rule that would have presumed that all COVID-19 illnesses affecting essential workers are work-related, after a court struck down the rule.

For employers and insurers seeking to contest workers’ compensation claims, it may be difficult, if not impossible, to determine how a worker contracted the virus (setting aside first responders and health care workers whose job is to deal with COVID-19 patients). Absent an outbreak at the workplace or other compelling evidence, it is difficult to imagine how to prove whether an individual was exposed to COVID-19 at work (from a customer or co-worker), rather than from a family member or other close contact or from somewhere else in the community, like at the grocery store.  (It is particularly difficult to determine the source of someone’s exposure to COVID-19 because it can take up to 14 days to develop symptoms.)

Contrary to the approach taken by many states for workers’ compensation purposes, OSHA’s guidance requires that, while health care and emergency response employers and correctional institutions make work-relatedness determinations for COVID-19 cases, most other employers do not need to record an employee’s COVID-19 illness on their OSHA 300 Logs unless there is evidence (such as multiple infections among close co-workers) indicating workplace exposure to the virus.

Workers’ compensation is a “no-fault” system, meaning that employees can recover for work-related injuries and illnesses, regardless of whether the employee or the employer was responsible for the incident on account of negligent or careless acts.  However, workers’ compensation benefits are the exclusive remedy for job-related illnesses and injuries, and employers can raise this as a defense when employees attempt to sue them outside of the workers’ compensation system. 

While specific standards vary based on individual state law, most states only provide for narrow exceptions, such as when the employer intentionally caused harm to the employee.  Accordingly, plaintiffs who have begun filing lawsuits over wrongful death or illness due to COVID-19 have argued that their employers engaged in intentional conduct that led to COVID-19 exposure at work, and the standards for overcoming workers’ compensation exclusivity vary by state.  At the same time, certain business groups and legislators have advocated immunity for employers from such lawsuits, so stay tuned for developments in this area.

Foley has created a multidisciplinary and multijurisdictional team that has prepared a wealth of topical client resources and is prepared to help our clients meet the legal and business challenges that the coronavirus outbreak is creating for stakeholders across a range of industries. Click here for Foley’s Coronavirus Resource Center to stay apprised of relevant developments, insights and resources to support your business during this challenging time. To receive this content directly in your inbox, click here and submit the form.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.


Related Services