How employers can defend themselves against a COVID-19 claim
Employers continue to be challenged by the many effects of COVID-19. One of those challenges is defending workers’ compensation claims filed by employees who allege that they contracted the virus in the course of their employment.
COVID-19 workers’ compensation claims are being treated by the Ohio Bureau of Workers’ Compensation (BWC) as occupational disease claims. An occupational disease is a disease contracted in the course of employment, and an employee must prove that their work environment resulted in a hazard that distinguishes their particular employment from any other general employment.
A communicable disease is generally not compensable, simply because individuals can be exposed to diseases and viruses in a wide variety of ways. Additionally, there are very few jobs that pose a greater risk of contracting a disease or contracting it in a different manner than that which the general public faces. However, the widespread and pervasive nature of COVID-19, coupled with the mandatory shutdown that forced only essential business to operate during a large part of 2020, has changed that landscape.
Typically, you think of health care workers or first responders as being more at risk for the development of an occupational disease, because their jobs may put them at greater risk than the general public. However, other essential businesses that were operating during the time when most of the country was shut down may now be considered high-risk employment.
As a business owner, if you find yourself defending a COVID-19 claim, ask these questions to try to get to the bottom of where the employee was exposed.
- What is the person’s regular job? Is he or she an essential worker?
- What PPE was provided, and is there proof the person used it?
- Was training provided about the use of PPE and personal washing?
- What processes and procedures were in place for sanitizing and disinfecting?
- How and when is the person alleging exposure to COVID-19?
- Is there proof of direct exposure to someone at work who tested positive?
- What symptoms does the claimant have and when did they start? Have they tested positive?
- Has the person been exposed to anyone in their household with a positive test, or was anyone in their household exposed to the virus?
- Has the person been to any gatherings of 10 or more people, or has anyone in their household done so?
It is also important to look at the time period for the alleged exposure and analyze where the business and the country were at that time in relation to the shutdown or reopening process, as the level of potential exposure outside of work could be greater when more businesses and social venues reopened. Also, consider whether the area of the state where the alleged exposure occurred was a hot spot at the time or if new reported cases were low.
Ultimately, obtaining answers to all of these questions will help narrow down the timing of the alleged exposure and assist an employer in defending a COVID-19 claim.
Elizabeth Weeden is lead attorney at Perez & Morris LLC.
