COVID-19 UPDATE from Bellas & Wachowski

Can COVID-19 Sufferers Claim Workers’ Comp?

Published on April 15th, 2020

Can COVID-19 Sufferers Claim Workers’ Comp?

Those who have become ill with coronavirus and think they caught it at work might be eligible to file a workers’ compensation or occupational disease workers’ compensation claim—or, in certain more limited cases, a personal injury lawsuit.

But these coronavirus claims are more likely to succeed if the worker toils in an occupation with exceptional risks, such as healthcare, retail or groceries, or if there’s been a concentration of cases within their employer’s workforce. And in fact, on April 13, 2020, Illinois Governor Pritzker announced emergency rules issued by the Workers’ Compensation Commission at his request in response to COVID-19. The rules presume that the individual’s exposure arises out of and in the course of employment and is assumed to be directly connected to the hazards or exposures of the petitioner’s employment. The rules filed Monday are effective immediately and cover first responders, front line health care providers and correction officers. The rules will also apply to essential employees in grocery and hardware stores, gas stations and others, but not media. 

The claims would be filed under the Illinois Workers’ Occupational Diseases Act or the Illinois Workers’ Compensation Act. Under either one, the employee would be looking to recover medical bills, temporary total disability and/or permanent partial disability.

The former reads, in part: “A disease shall be deemed to arise out of the employment if there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is performed and the occupational disease.”

Documentation Needed

For non-essential employees, to convince those rational minds, the employee will need to have documented evidence of job-related exposure, including their activity, time and location. If that can be established, they likely would be in a position to assert that their employment elevated their risk of COVID-19 vis-à-vis the general public.

This would be easiest for somebody working directly with coronavirus patients—such as healthcare workers or emergency responders—and considerably more difficult for those in less risky occupations, especially as the pandemic becomes more widespread and thus a natural outgrowth of going much of anywhere.

Those in the hospitality and travel industry, those required to travel for work even now because they are involved in sales or marketing, cleaning and maintenance crews, and some retail employees—especially those who work at pharmacies—also could have an argument.

To file a workers’ compensation or occupational workers’ compensation claim, the employee would need to confirm the diagnosis through testing, provide a detailed job history and medical history, and find out whether any co-workers were diagnosed.

Doctors who treat coronavirus patients are more likely to help file such a claim if the employee is a healthcare worker, first responder or in another high-risk occupation, especially if he or she can cite a likely source or event, like treating a patient with the virus.

Eligibility to file workers’ compensation claims does not require that you be performing your actual duties at the time and can include contracting coronavirus in your office bathroom. An employee also does not need to be at their usual workplace – they can be traveling, visiting a client, or even buying something at the store for use in the workplace.

Establishing Fault Unnecessary

Due to the no-fault workers’ compensation system, your employer does not need to be at fault if you contract COVID-19. The flip side of this is that in most cases, you cannot sue your employer for personal injury due to a work-related injury. 

Exceptions include cases of “gross negligence” and bad faith denial of a workers’ comp claim, as well as independent contractors who can prove they got sick while working for the company—although, again on the flip side, contractors cannot claim workers’ comp.

Survivors of those who succumb to the pandemic can file coronavirus claims under workers’ compensation laws and receive death benefits for their families. They will need to show the same proof as employees who survive the disease and want to file a claim.

Resources Available

For those seeking general background information, Cook County government provides a guide on workers’ compensation and some specific information about COVID-19. The Illinois Workers’ Occupational Diseases Act contains the details of state legislation on the topic. And the U.S. Occupational Safety and Health Administration has information on personal protective equipment that workers can wear.

Speaking with a workers’ compensation attorney will give you a better sense of your specific rights and how best to proceed. Peter Wachowski brings more than 25 years of experience in this area. He can be contacted at (855) 980-0078 or peter@bellas-wachowski.com

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