In the wake of the novel coronavirus pandemic, many employers are being confronted with new issues on a daily basis. Unfortunately, many issues are expected to linger even after the pandemic. One concern employers need to be aware of is the possibility of a workers’ compensation claim or a civil claim brought by an employee alleging he or she contracted COVID-19 in the workplace. Would such contraction of the disease be considered an “accidental injury” or “occupational disease” within the meaning of the Missouri Workers’ Compensation Act? If such injury is not covered by workers’ compensation, should employers instead be concerned with the potential for a civil lawsuit? While the answers may change on a case-by-case basis, the following is intended to act as general guidance and some “food for thought” for employers while navigating these unprecedented times.
Missouri Workers’ Compensation Law
Each state has its own workers’ compensation system which applies to private employees, whereas government employees are covered by a separate federal statute. Workers’ compensation laws were enacted to ensure that employees who sustain a work-related accidental injury or occupational disease receive benefits from their employer in the form of medical treatment and rehabilitation, payment for lost time, and permanent disability benefits, or alternatively, if appropriate, death benefits payable to a deceased employee’s family. In exchange, employees who sustain a work-related accident give up their right to pursue a civil action against their employer for negligence, for example, which may have caused or contributed to such accidents.
However, it is important to note that simply because an injury occurs at work or on the employer’s premises does not automatically mean it is a compensable workers’ compensation claim, which would thereby shield an employer from concurrent civil liability arising from that same injury. An injured worker bears the burden of proving the essential elements of a workers’ compensation claim, which, at the most basic level include: a) sustaining an accident or contracting an occupational disease within the meaning of the Act; b) such accident both arose out of and occurred in the course of employment; and c) the existence of a medical causal relationship between the accident and any resultant medical condition and disability.
a) Is COVID-19 an Accidental Injury?
Employees may try to argue that the contraction of COVID-19 constitutes an “accident” within the meaning of the Missouri’s Workers’ Compensation Act. §287.010, RSMo, et seq. §287.020.2 RSMo defines an “accident” as “an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift.” Accidental injuries are typically those which occur suddenly or at one definite point in time. Given the fact that the coronavirus has been deemed highly infectious and widespread, the likelihood of an employee being able to pinpoint a specific,
identifiable time and place where he contracted the virus within the workplace will be rare, although not impossible.
b) Is COVID-19 an Occupational Disease?
Alternatively, employees may try to argue that the contraction of COVID-19 is an occupational disease, which tends to develop gradually over a period of time. §287.067.1, RSMo, defines an “occupational disease” as “an identifiable disease arising with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section.” (emphasis added). Arguably, COVID-19 has reached the level of such an “ordinary disease” to which the general public is exposed outside of employment, and would therefore not be compensable as an occupational disease under the Act. Again, however, the possibility of establishing an occupational disease via contraction of the coronavirus, although slim, cannot be entirely ruled out.
c) Does the Injury Arise Out of One’s Employment?
Even assuming an employee can establish he sustained either an accident or occupational disease in the workplace, the employee must also prove that his injury arose out of and occurred in the course of employment in order to establish a compensable workers’ compensation claim. “In the course of” generally refers to the time, place, and circumstances of an injury and is often a low threshold to meet. An injury “arises out of” one’s employment where: “(a) [i]t is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and (b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal non[-]employment life.” §287.020.3(2), RSMo (emphasis added).
The “prevailing factor” touches on the issue of medical causation and is defined as the “primary factor…causing both the resulting medical condition and disability.” §287.020.3(1), RSMo. While it is certainly possible that an employee could produce a medical expert report opining that his employment was the prevailing factor in the contraction of COVID-19, nevertheless an employee must also establish that he was at a greater risk of contracting the coronavirus in the workplace than what he would have been equally exposed to in his normal non-employment life.
It is the “increased risk” factor for alleged workplace accidents (and “ordinary diseases of life to which the general public is exposed” factor for alleged occupational accidents) that the average non-healthcare employee would seemingly have a difficult time establishing, given how widespread and contagious the coronavirus has proven to be. The key inquiry will be whether the employee’s job duties increased the risk of contracting the disease. As of this point, the risk of contracting COVID-19 does not appear to be unique to any particular industry or occupation. In other words, it appears an average employee would be just as equally exposed to contracting COVID-19 within the workplace as while out in public shopping for essentials, picking up medication or carry-out meals, or pumping gas, etc.
Although, one may wonder whether those employees who are deemed “essential” and/or those who cannot otherwise work from home and away from the public – i.e. grocery store, pharmacy, and other essential services employees who are unable to practice social distancing at work as a practical matter – would have a stronger argument that they are in fact at a higher risk of contracting COVID-19 due to their employment. Missouri’s statewide stay-at-home order may also undoubtedly be taken into consideration when evaluating an employee’s risk, as this has allowed for many employees to work remotely, thereby decreasing their risk of contracting the virus.
First Responders and Government Employees Will Likely Be Covered Under Workers’ Compensation
On April 7, 2020, Governor Parsons and Anna Hui, Missouri State Labor Department Director, announced that the Missouri Department of Labor changed state regulations to help ensure that first responders who contract COVID-19 are eligible for workers’ compensation coverage. The new rule creates a presumption that first responders who are diagnosed with COVID-19 contracted the virus during their official duties. This change, in essence, allows first responders to bypass the otherwise stringent and seemingly difficult-to-prove requirements that one’s employment was both the prevailing factor in causing the diagnosis and that the injury arose out of one’s employment. This new rule will go into effect on or around April 17, 2020, but will apply retroactively to the beginning of the coronavirus outbreak.
Moreover, the U.S. Department of Labor confirmed that all federal and postal workers who develop COVID-19 while in the performance of their federal duties may be entitled to workers’ compensation coverage pursuant to the Federal Employees’ Compensation Act (FECA).
Employers May Nevertheless Be Subject To Civil Liability
Although most employers may likely be shielded from liability in the workers’ compensation context, they may not all be immune to civil lawsuits alleging negligence, wrongful death, or other similar causes of action stemming from their handling (or mishandling) of the coronavirus outbreak within the workplace. The Missouri Supreme Court has held that workers who are excluded from coverage under the Missouri Workers’ Compensation Act nevertheless may pursue a common law tort remedy against their employer. Missouri All. for Retired Americans v. Dep’t of Labor & Indus. Relations, 277 S.W.3d 670, 679-80 (Mo. 2009). In other words, the exclusive remedy provision of the Act (§287.120, RSMo) prohibits employees from pursuing both a workers’ compensation and a civil claim against their employer; however those employees whose injuries do not fall within the scope of the Act are not subject to its exclusivity provision and can therefore still pursue a civil action.
It goes without saying that an employer’s potential liability in a civil lawsuit will almost always vastly exceed its liability in the workers’ compensation context. The unpredictability of a jury is also an important consideration to take into account. Employers may want to consider that it in
many circumstances it may be more time- and cost-effective to accept a workers’ compensation claim related to the contraction of COVID-19 in the workplace as opposed to risking a civil lawsuit.
Lastly, as a matter of best practice, to help avoid all types of liability, employers should remain vigilant in their efforts to reduce transmission of COVID-19 amongst employees, maintain healthy business operations, and maintain a healthy work environment. This may include screening employees’ temperatures as allowed for under the law, sending symptomatic employees home, mandating a 14-day leave for those who are sick, and informing employees of a known COVID-19 diagnosis within the workplace, while still maintaining confidentiality, of course.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.
