Can a worker claim workers’ compensation for COVID-19 exposure, illness or quarantine?

[The following is a general response to questions from students in workers’ compensation, disability management, and workplace insurance courses.  The law and policy will vary by specific jurisdiction].

The emergence of the novel coronavirus (COVID-19), has prompted concerns around the world.  While prevention, control, and treatment questions top the list, workers’ compensation questions are being raised.  The most common question: Can a worker with a confirmed case of COVID-19 illness successfully claim workers’ compensation?  The short answer is “Yes”.  Getting to that short answer, however, takes some explanation, beginning with the determination of the work-relatedness of the disease.   

Work-relatedness of disease

For COVID-19 or any other disease-causing virus, the possibility of a workers’ compensation claim depends on the wording of law and policy in the jurisdiction.  Many diseases are scheduled as “occupational diseases” in workers’ compensation law or defined in policy.  Occupational, work-process, or industrial exposure to known, biologically-active agents including viruses may be defined as the presumed cause of specific disease (lead poisoning in smelter workers, chicken pox contracted by a teacher from a student in their care, for example).  The presence of disease and the history of exposure in the occupation or industry defined typically establishes a presumptive (although rebuttable) work-related cause, opening the door to workers’ compensation claims for medical costs, rehabilitation, financial compensation, survivor benefits, and death benefits. 

A novel disease will not have been previously scheduled as an occupational disease in legislation or listed in policy. In such cases, it must be determined whether the disease is work.  If the nexus between work and resulting health impact can be shown, then the basis for a workers’ compensation claim can be established.

The test to establish work-relatedness, or causation, of a disease varies across jurisdictions. For example, in British Columbia, the test for work-relatedness is “causative significance”, meaning the worker’s employment must have been of causative significance in producing the disease. To satisfy the causative significance test, the worker’s employment must have been more than a trivial or insignificant aspect.

A few workers’ compensation jurisdictions have a more stringent test, often referred to as “predominant” or “major contributing cause”.  In Oregon, the condition that stems from the injury or disease rather than on-the-job injury or exposure is the basis making a claim; work has to be a “a major contributing cause” of a condition, defined as a cause contributing more than 50 percent to an injured worker's disability or need for treatment. 

COVID-19 appears to spread most easily to those who come into “close contact” with the virus.  The US CDC defines close contact for healthcare workers as follows (see footnote 2 in CDC’s FAQs for  Coronavirus Disease 2019 (COVID-19):

a) being within approximately 6 feet (2 meters) of a COVID-19 case for a prolonged period of time; close contact can occur while caring for, living with, visiting, or sharing a health care waiting area or room with a COVID-19 case, or

b) having direct contact with infectious secretions of a COVID-19 case (e.g., being coughed on)

  

For healthcare workers, ambulance drivers, physicians treating COVID-19 patients, the applicable work-relatedness test may be more easily established given the increased likelihood of exposure

Less obvious but still likely to meet the work-relatedness test, are bus drivers transporting quarantined travelers, cleaners brought in to disinfect facilities, or morticians dealing with the fatalities of the disease.  Beyond occupations and industries that make the likelihood of exposure and infection higher than that of the general public, establishing work-relatedness may be difficult once the virus is not traceable from person to person. 

Standard of proof

Workers’ compensation jurisdictions vary regarding the standard of proof necessary to establish the issues in question, such as causation.  Unlike criminal law where the standard of proof is “beyond a reasonable doubt”, most workers’ compensation statutes rely on a “balance of probabilities” standard:  if it is more likely than not that the disease is work-related, then the claim is accepted for workers’ compensation purposes.

Some workers’ compensation jurisdictions, like British Columbia, have a slightly lower “evenly weighted” standard: if the evidence on an issue is evenly weighted, the finding must favour the worker. This means that a claim is accepted if it is at least as likely as not that the disease is work-related.

Establishing work-relatedness of disease

Note that evidence a worker has the disease is not evidence the disease is work-related.  A valid, accurate lab test may well confirm the presence of COVID-19 but not it’s work-relatedness.

In the early stages of epidemiological investigation, the connection between work and the diagnosis may be established by public health officials and epidemiologists tracing the source of the infection and those who came in contact with the disease.  In the case of a public health worker contracting the virus after exposure to infected individuals, that work-related connection is pretty obvious in the early stages of an outbreak.  On the face of it, the public health authority’s epidemiological reports would likely be sufficient evidence for satisfying the work-relatedness test.  Scheduled occupational disease provisions or statements in policy may allow the presumption of work-relatedness in the absence of information to the contrary without need for detailed investigation in every single instance. 

The challenge for many workers outside scheduled or policy-defined industries or occupations is to establish that work-relatedness.  Once the disease is more generally spread in the community, establishing the work-relatedness may be much harder to do.  Is the worker ill with an infection confirmed as COVID-19?  Did the exposure resulting to the infection arise in the course of employment and out of the duties associated with that work, or was the exposure from the use a surface on public transit, an unshielded cough of passerby on a street, or from another vector of disease (including our own children)? 

The adjudicative decision for a workers’ compensation claim will become more complex as the risk differential between work and non-work exposures equalize. The onus of proof in inquiry-based workers’ compensation systems (such as British Columbia and Ontario) remains with the insurer; in adversarial systems (most US jurisdictions), the onus may fall more heavily on the worker.  In either case, the complexity of determining the work-relatedness question can mean extensive investigation, cost and delay in reaching a decision.

Exposure is not disease…  Or disability

All of us are exposed to agents of illness and disease in our lives and work but exposure does not necessary lead to disease.   A healthcare worker attending patients with an active case of COVID-19 disease, for example, may be in close contact for varying durations of exposure but never develop the disease.   Personal protective equipment (PPE), training, and adherence to protocols are specifically designed to counter the increased risk in clinical settings where healthcare workers are exposed to severely ill patients.  

Not all those exposed to the COVID-19, even in close contact such as a quarantined residence, will not necessarily become infected with the COVID-19 virus.  Reportedly, a couple confined to the same cruise ship cabin, one partner can test positive for the disease while the other does not.  For COVID-19, as for many other agents of illness and disease, exposure alone does not guarantee disease and/or disability.   

Even in cases where exposure results in a positive test for COVID-19, not everyone develops disabling symptoms. It is not clear yet why some people who test positive seem unaffected by COVID-19.  Children and some adults have tested positive for COVID-19 but show no signs of illness or disease.  In others, the symptoms may be mild and dismissed as a minor cold.

From a workers’ compensation perspective, this is an important point:  exposure is not disability.  Exposure may lead to disease and disease may be disabling.  Where exposure is not followed by disease, and or disability, a claim for any workers’ compensation because of COVID-19 exposure would unlikely succeed; no medical treatment would be required and there is no impairment that makes the worker incapable of work.  Documentation of the exposure is always important but unless the disease develops, it is unlikely any claim filed would be accepted by the workers’ compensation insurer. 

At this point, testing for COVID-19 is a public health issue.  At some point, credible diagnostic tests may be offered through medical labs.  Diagnostic tests are generally not considered as medical expenses under a workers’ compensation claim.  At present, there is no vaccine against this disease.  When one is available, the cost would not normally be covered by workers’ compensation. 

What about asymptomatic disease cases?

A case of COVID-19 may be detected in an asymptomatic person.  The person may or may or may not develop symptoms but may be able spread the disease to others.  A confirmed case in an asymptomatic person may be subject to quarantine or isolation. 

Let’s clarify those terms:  Quarantine restricts the movement of well persons who may have been exposed to a communicable disease.  Isolation separates an ill person from those who are healthy. 

In a confirmed work-related COVID-19 exposure where the worker tests positive for the virus, the worker would likely be isolated and monitored in isolation.  Once the virus is no longer detected, the individual is no longer infectious.  Barring any necessary recovery time, the worker can safely return to work.

In this case, all the necessary elements of a claim may be present: the person is a worker, the exposure is work-related, and disease is confirmed.  Work is causative of harm.  The body reacts but at a level that is asymptomatic.  But for the infectious nature of the disease, there is no impairment.  With no symptoms, there are no medical expenses.  There is no treatment for COVID-19, so no medical treatment expenses are incurred.  

Assuming there is no work the worker could do while in isolation, the period where the worker is unable to earn because of the illness (continued detection of the virus) may result in earnings loss.  A workers’ compensation claim for lost earnings may be defensible for an asymptomatic worker with work-related COVID-19.

Suppose a treatment is developed that hastens the ability of the body to fight off the virus and shorten the course of illness.  If such a treatment existed, its cost might be accepted as a medical expense in an accepted workers’ compensation claim made by a worker with test-confirmed COVID-19 but no symptoms.   

Accepted COVID-19 workers’ compensation claim:  what is covered?

An accepted workers’ compensation claim opens the door to payment for medical expenses, hospital costs, prescriptions, rehabilitation and compensation for lost wages. In some cases, recovery will be protracted.  It is not clear if permanent disability results but past experience with SARS would suggest that permanent disability may occur and compensation may be payable.

If the disease is work-related and COVID-19 results in death, workers’ compensation may provide payments to survivors and dependents as well as funeral or burial costs.

What about quarantine?

According to news coverage, some workers have been quarantined due to exposure to COVID-19 in the course of their employment.  Some workers caught in a quarantine of a ship, hotel, or other facility may continue in their employment duties and receive wages for their work; others such as the flight crew of an evacuation mission may be quarantined with their passengers for the duration of the quarantine period.  Can quarantined workers claim workers’ compensation for their lost wages?

Workers’ compensation claims are generally based on disability not exposure.  In most cases, lost wages due to quarantine would not be considered compensable under a workers’ compensation claim.  Employer HR policies or collective agreements may have provisions to use sick leave or vacation time for quarantine cases.  Employers may also continue to pay workers either on the basis that adhering to the quarantine is an implicit work-related assignment or in recognition of on-line work they may be able to do during the quarantine.

Quarantine duration periods imposed for COVID-19 are typically around the 14-day time frame.  Quarantines may be recommended or imposed on persons with exposure.  Given the possibility of spreading the disease while asymptomatic, the 14-day time frame following exposure is intended to contain the disease.  Not every employer offers sick leave and even if sick leave is a provision, not all employees will have sufficient sick leave to cover a 14-day absence.  Even if the quarantine is work-related, there is no typically no basis for a workers’ compensation claim.

Psychological impacts?

Think of the dedicated health care workers coping with the onslaught of sick patients or the field workers in public health visiting the ill or dying in the community during a pandemic.  Consider a crew member responsible for serving quarantined guests, some of whom eventually test positive for COVID-19 and are removed to a hospital for treatment.  The psychological impact might be significant even if these workers do not contract the particular virus themselves.  It is conceivable that workers may file claims related to COVID-19 based on mental injuries despite the absence of the disease itself. 

Jurisdictions vary in how mental injuries are adjudicated within the workers’ compensation framework. Most accept mental injury that is the sequelae or consequence of a compensable work-related injury or disease.  Workers’ compensation jurisdictions may also accept a claim for a work-related mental injury as the primary condition, provided certain requirements set out in each jurisdictions’ law and policy has been met.

Mental injury may arise independent of direct physical harm and may take months to develop and be diagnosed.  The stress of being confined with others particularly if others in the group develop the disease may contribute to anxiety and depression of others in quarantine.  The longer-term impacts may include Post Traumatic Stress Disorder (PTSD).  A recent review found quarantine could have negative consequences [see Samantha KBrooks, Rebecca K Webster, Louise E Smith, Lisa Woodland, Simon Wessely, NeilGreenberg’ Gideon James Rubin, “The psychological impact of quarantine and howto reduce it: rapid review of the evidence”, The Lancet, OnLine First,February 26, 202].   To date, there are no published reports of workers’ compensation claims for mental injury being accepted.

Employer responsibilities

Employers are responsible for the health and safety of their workers.  That general duty does not diminish in the event of an outbreak or pandemic.  The duty to plan for and protect workers is not limited to the healthcare system.  Retail, factories, banks, arenas, restaurants and offices need procedures and plans in place.  Supplying a box of face masks and a container of disinfecting wipes may be appropriate but are insufficient in most cases to discharge an employer’s duty.

Employers need to ask fundamental questions about what will happen in the event of an infectious disease outbreak.  Will workers be able to work from home?  If certain workers are quarantined, who will do their necessary work?  Have they been trained?  Is their safety likely to be at risk?  These questions are just as valid for small businesses as they are for large ones.  The prospects of a widening prevalence in the community increases the urgency to plan, acquire protective equipment, establish procedures, and prepare.   

So, in addition to “wash your hands, wash your hands” and “don’t touch your face”, take the time to think about the implications an infectious disease like COVID-19 might have in your workplace.  If you are an employer,  work in human resources, or serve on a joint health and safety committee, look at your plans, update your policies, check with your workers’ compensation and disability insurance providers—they will likely have resources to help you plan and prepare.  Whether COVID-19 or a future virus spawns a pandemic, your preparation will be worth it.

Term	Practical Definition for Workers’ Compensation COVID-19 Claims Purposes
Asymptomatic	Not having or showing signs of illness
Case	An instance of COVID-19 infection (not the person)
Exposure	Direct or close contact with an infectious agent (such as bodily fluids from a person with active viral disease)
Isolation	Separation of an ill person or persons with a communicable disease from those who are healthy with the purpose of limiting the spread of the disease
Quarantine	Separation and restriction of movement of a well person or persons who may have been exposed to a communicable disease with the purpose of limiting the spread of the disease (and detect if illness develops).
Symptomatic	Having or showing signs of illness