California courts are likely to treat COVID-19 as a non-occupational disease in most instances, making claims for exposure non-compensable
Notable exceptions are probable, however, including for health care workers, first responders, and others whose alleged contraction of COVID-19 might be causally tied to employment
Employers should practice risk avoidance by following the latest federal and state workplace safety guidance, including from OSHA
Throughout California, officials have responded to the threat of the novel coronavirus and COVID-19 by closing down schools, banning large gatherings, and encouraging people to stay home as much as possible. On March 4, 2020, hours after California had announced its first death from the illness, Governor Gavin Newsom declared a state of emergency in an effort to combat the spread of the virus.
While the scope and severity of the coronavirus threat have yet to be determined accurately, California employers must take necessary steps to protect their employees and combat the spread of the virus. Otherwise, they may find themselves liable for any residual health effects caused by the coronavirus and alleged in workers’ compensation claims.
Non-Occupational Disease: Assessing Compensability and Exceptions in California
Generally, non-occupational diseases, such as the flu or common cold, do not arise out of employment and are non-compensable. As compared to physical injuries, non-occupational diseases present inherent difficulties in the determination of causation.
Nonetheless, two overarching exceptions exist to this general rule of non-compensability. First, if the employment subjects the employee to an increased risk compared to that of the general public, the injury is compensable. Second, if the immediate cause of the injury is an intervening human agency or instrumentality of the employment, the injury is also considered compensable.
Exemplifying the first exception, in Pacific Employers Ins. Co. v. Industrial Accident Commission (1942) 19 Cal.2d 570, the California Supreme Court affirmed an award of compensation to a traveling salesman who was determined to have contracted San Joaquin Valley fever, a respiratory illness caused by a mold or fungus native to the San Joaquin Valley, during his business trips to the area. There, the court found it was the employment that caused the salesman to come in contact with the infection.
In Bethlehem Steel Co. v. Industrial Acci. Com. (1943) 21 Cal.2d 742, the California Supreme Court again affirmed a finding of compensability where employees working in shipyards contracted a contagious eye disease. Despite evidence that the eye disease was also an epidemic to some extent in the community, the court nonetheless found the exposure to the eye disease in shipyards was in excess to that in the community. As such, the court classified the eye disease as an injury arising out of and in the course of employment.
Therefore, if employment places an employee at a greater risk of contracting the coronavirus than the general public, such as, but not limited to, medical providers and personnel, courts may deem an employee’s exposure to the virus to be compensable. This may also hold true for employees exposed to the virus on business travel or at employer-mandated gatherings. Further, Bethlehem Steel stands for the proposition that employee-contracted coronavirus may ultimately be found compensable, despite parallel community outbreak.
In Roberts v. U.S.O. Camp Shows, Inc. (1949) 91 Cal.App.2d 884, the California Court of Appeal affirmed a determination of compensability where an employee musician contracted encephalitis as a result of employer-mandated immunizations by employer-designated physicians. There, the court held “incapacity caused by illness from vaccination or inoculation may properly be found to have arisen out of the employment where such treatment is submitted to pursuant to the direction or for the benefit of the employer.”
Similarly, in Maher v. Workers’ Comp. Appeals Bd. (1983) 33 Cal.3d 729, the California Supreme Court held an injury caused as a result of employer-mandated medical treatment for a preexisting and nonindustrial condition is nonetheless compensable. There, a nurse’s assistant was required by her employer to undergo treatment for preexisting tuberculosis as a condition of her employment. After receiving treatment, she developed a severe adverse reaction. The court viewed the employer-required treatment as arising out of the employment, rendering it compensable.
Thus, per Roberts and Maher, even if employee-contracted coronavirus is not a result of industrial exposure, an employer may nonetheless be found liable if the employment aggravated the condition. Accordingly, employers should take precautions to ensure employees suffering from coronavirus do not exacerbate or aggravate the condition in the workplace. This may mean refusing to allow employees demonstrating any sort of flu-like or common cold symptoms into the workplace.
Additional Compensability Considerations
Permanent vs. Temporary Disability
If facing workers’ compensation claims as a result of the coronavirus, it will be important to note that a finding of compensability will not necessarily result in a finding of permanent disability. As is the case with most viral infections, an infected employee’s symptomology is finite. In such cases, a finding of compensability would put the employer on the hook for medical treatment related to the virus. Bear in mind, however, that it is the applicant’s burden to prove the virus was contracted as a result of employment, which can prove to be an uphill battle.
Of course, a finding of compensability in a coronavirus case resulting in the death of an employee will subject the employer to death benefits; however, based upon the information available to date, there is no evidence to suggest exposure to the coronavirus leads to death on a wide-scale basis. Nonetheless, it remains important for employers to stay vigilant and up-to-date with the virus’ progression.
Risk Avoidance: OSHA and Workplace Safety Guidance
Employers should continue to remain abreast of guidance from federal, state, and local health agencies on how to respond to the ongoing coronavirus threat. OSHA does provide some guidance and recommendations for preparing your workplace for the coronavirus, including:
- Developing an infectious disease preparedness and response plan
- Implementing basic infection prevention measures
- Developing procedures for prompt identification and isolation of sick employees
- Implementing workplace flexibilities and protections
- Implementing workplace controls
- Following existing OSHA standards
Ultimately, the preemptive and cautionary measures taken in response to the coronavirus will vary based upon the unique nature of each workplace and industry. While many industries and employers are responding to the coronavirus outbreak by providing hand sanitizer, disinfecting surfaces multiple times throughout the day, or requiring employees to work remotely, these options may not be available for all businesses. Nonetheless, all employers should be promoting frequent and thorough hand washing, encouraging workers to stay home if they feel sick, and encouraging respiratory etiquette, such as covering coughs and sneezes.
Additional information regarding preparing workplaces for the coronavirus can be found here.
Goldberg Segalla’s Workers’ Compensation practice has created a comprehensive, state-by-state guide to workers’ compensation claims-handling considerations in light of the coronavirus pandemic. Click here to request a copy: COVID-19 and Potential Exposure in Workers’ Compensation Claims: State-by-State Guide.
We will continue to monitor the development of the coronavirus epidemic, the latest regulatory guidance, and the emergence of coronavirus-related claims. For more information or further guidance, contact: