Key Takeaways:

• Smoke from the Canadian wildfires are likely  to result in workers’ compensation claims linked to smoke-related injuries

• Compensability should focus on how much an employee’s work increases the exposure to smoke and risk of injury

• Employers should take measures to mitigate exposure and document those measures

As the smoke from the Canadian wildfires makes its way south to the eastern seaboard of the United States, what do we do with employees who are claiming smoke-related injuries? The answer likely differs between jurisdictions. However, there are certain guiding principles and questions to ask that can help with the analysis.

If the workers are required to be outside as a part of their employment, the injuries are more likely to be compensable. If the worker’s position requires him or her to be more exposed to the smoke than someone who is indoors, it will likely be more difficult to dispute compensability of these injuries in many states. However, if a worker has the same likelihood of smoke exposure at work as he or she would at home, it far less likely that those injuries would be compensable.

The analysis for compensability should focus on how much an employee’s work increases the exposure to smoke and increases the risk of injury. In states that separate treatment of the injury from permanent disability resulting from the injury, the employee would still need to prove that the smoke exposure caused some permanent disability to recover a permanency award.

Mitigating exposure is always an important part of the workers’ compensation process. Providing PPE (personal protective equipment) in the form of N-95 masks is a great proactive approach that, if documented, could be helpful if any of these alleged injuries are litigated in the future. Any other measures that help limit employees’ exposure to the smoke should be taken as well.

Obviously, we are in unique times without much guidance from prior statutes or case law on this emerging issue. Therefore, each state and each case must be analyzed on an individual basis. To have your questions answered or discuss strategies for dealing with these claims, please contact:

• Noah L. Dennison
• Philip Unwin
• Esther F. Omoloyin
• Sean McKinley
• Damon M. Gruber
• Or another member of Goldberg Segalla’s Workers’ Compensation team