Review of Potential COVID-19 Liability of Employers in Workers Compensation
Currently, the United States is experiencing more and more individuals testing positive for the Coronavirus, or COVID-19. One question an employer might have is whether or not they may be liable under workers’ compensation if one of their employees contracts the virus. Our firm has reviewed Missouri and Kansas law to determine possible defenses that could be raised should a claim be brought regarding COVID-19.
The coronavirus is listed as a communicable disease by the Missouri Department of Health & Senior Services. An occupational disease is defined to include communicable diseases. Section 287.067.
Under Missouri law, occupational disease cases do not follow the unequal exposure rule as outlined in § 287.020.3(3). Lankford v. Newton Cnty., 517 S.W.3d 577, 584-85 (Mo. App. S.D. 2017). Rather, cases involving occupational diseases follow § 287.067.2, which includes language providing “[a]n occupational disease is not compensable merely because work was a triggering or precipitating factor.” Id. Specifically, the Missouri Court of Appeals agreed with the Commission in finding an employee must demonstrate that the disease he suffered is not an “ordinary disease of life to which the general public is exposed outside of employment.” Id.
A virus can be contracted outside of one’s employment. Given current definitions and case law, the best defense is Coronavirus is an ordinary disease of life to which the general public is exposed to outside of employment.
An argument which could be raised is a claimant did not contract the virus from another person, but rather the virus on items at work (i.e. items shipped in from areas, which had an outbreak of virus). Here, claimant would still have the burden of proving the virus was contracted in the course of employment, which would be difficult as it is now known a person can develop symptoms anywhere between 1-14 days after infection. In further defense of this argument, the World Health Organization reported “The likelihood of an infected person contaminating commercial goods is low and the risk of catching the virus that causes COVID-19 from a package that has been moved, travelled, and exposed to different conditions and temperature is also low.” who.int/news-room/q-a-detail/q-a-coronaviruses.
Finally, employees who are medical providers, first responders, or are required to travel to high-risk areas, may argue their employment created an increased risk of contracting COVID-19. While this argument is one to be aware of, it does not make a claim patently compensable.
For further recommendations on how business and employers should address this the current COVID-19 issue, please visit the following website for Interim Guidance for Businesses and Employers, https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html?CDC_AA_refVal=https%3A//www.cdc.gov/coronavirus/2019-ncov/specific-groups/guidance-business-response.html. This link is a good resource for information regarding the best steps employers can take during this time.
Missouri Update Regarding First Responders (April 10, 2020).
On April 7, 2020, the Missouri Department of Labor and Industrial Relations, with the Division of Workers’ Compensation, filed an Emergency Rule 8 CSR 50-5.005, which would provide a presumption First Responders contracting COVID-19 “contracted a contagious or communicable occupational disease arising out of and in the course of the performance of their employment.” This will include situations where the First Responder is quarantined at the direction of the employer due to suspected exposure, displaying of symptoms, presumptive positive test, diagnosis from a physician of COVID-19, or a laboratory-confirmed diagnosis.
This rule is effective, April 22, 2020, if no further substantive revisions are made. Of note, this rule will be retroactive for any instances, which occurred prior to the April 22, 2020 effective date.
The new rule change would make defenses previously mentioned harder to prove. However, it is important to note, this only pertains to First Responders at this time. The Rule goes on to state, a First Responder is not entitled to the presumption if subsequent medical establishes by clear and convincing evidence the First Responder did not have COVID-19, or contracted or was quarantined for COVID-19 resulting from exposure that was not related to the First Responder’s employment.
A copy of the Emergency Rule can be found at https://labor.mo.gov/sites/labor/files/8_CSR_50-5.005_Emergency_Final.pdf.
In Kansas, occupational disease is defined in K.S.A. 44-5a01. Within this definition, is the requirement that the disease “. . .must appear to have had its origin in a special risk of such disease connected with the particular type of employment and to have resulted from that source as a reasonable consequence of the risk.” K.S.A. 44-5a01(b). Further, “Ordinary diseases of life and conditions to which the general public is or may be exposed to outside of the particular employment, and hazards of diseases and conditions attending employment in general, shall not be compensable as occupation diseases…” K.S.A. 44-5a01(b).
In every case, the evidence will be weighed in order to determine whether a disease was occupationally induced or was an ordinary disease of life. Moore v. Cimarex Energy Co., 2014 Kan. App. Unpub. LEXIS 454, at * 9-10 (Kan. Ct. App. 2014). In Moore, the court cited claimant had failed to establish a causal relationship between risk of employment and the cause of his disease. Id.
Therefore, in Kansas, the best defense to a claim regarding COVID-19 would be to argue it is an ordinary disease of life to which the general public is exposed to outside of employment. It is well known at this point, a person can contract this disease many ways, mostly by being exposed to the general population.
Defenses are available to a potential Coronavirus claim under Kansas law. The best defense will be that COVID-19 is an ordinary disease of life, is not particular to the employment and does not fit into K.S.A. 44-5a01’s definition of an occupational disease. This can be argued through the fact that numerous people from all walks of life have contracted the disease, and therefore is not specific to any type of employment.
A resource that may prove helpful in navigating the current situation for Kansas employers is the website for Kansas Department of Health and Environment, which has a COVID-19 Resource Center page and includes a section for Businesses and Employers. This can be accessed at: http://www.kdheks.gov/coronavirus.
COMMON LAW CAUSES OF ACTION
It is important to remember employees will still have other avenues in which they could pursue employer liability, such as common law causes of action. For example, employees could pursue personal injury or wrongful death claims against an employer after contracting COVID-19. As this is a novel situation, there is no case law which would indicate the strength or weakness of these claims. However, it is still important to understand and be aware these claims could arise.