COVID-19 UPDATE from Bellas & Wachowski

Can COVID-19 Sufferers Claim Workers’ Comp?

Published on April 15th, 2020

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 risk, such as healthcare, retail or groceries, with help from recently passed legislation, or if there’s been a concentration of cases within their employer’s workforce.

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 act 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.”

Shifting Burden of Proof for Essential Workers

Newly enacted changes to these laws, passed nearly unanimously in the legislature and effective as of June 5, have shifted the burden of proof from employee to employer for those in certain occupations. These include police and fire, healthcare, and grocery and other “essential business” employees who either interact with the general public and/or work in locations with more than 15 employees.

Before the passage of Public Act 101-633, a/k/a WC Covid Legislation, employees in these categories would have needed to prove that they contracted COVID-19 in the workplace and that it also arose out of their employment. Instead, the “rebuttable presumption” is now that they contracted the disease at work and that it was “causally connected to the hazards” that are part and parcel of their employment.

This presumption means they are entitled to recover such benefits as payment for medical costs, lost wages and, for the survivors of those who pass away, death benefits. For cases that arose after June 15, a positive virus or antibodies test will be required.

The legislation also provides employers with three possible defenses: that the employee was working at home or otherwise away from the workplace for at least 14 days before they contracted COVID; that there is a specific reason to believe the employee contracted COVID somewhere else; and that the employer can show they fully complied with sanitation, social distancing and other safety guidelines, generally and specific to their industry, as promulgated by federal and state public health officials.

Other Workers Need More Documentation Needed

Other categories of employees will require documented evidence of a job-related exposure, including their activity, time and location, and they do not enjoy the same rebuttable presumption. But if job-related exposure can be established, they would be in a position to assert that their employment elevated their risk of COVID-19 vis-à-vis the general public.

This will be more challenging for those in less risky occupations, especially as the pandemic becomes more widespread and thus a natural outgrowth of going much of anywhere. Others who could have an argument include those in the hospitality and travel industry, cleaning and maintenance crews, non-essential retail employees, and those required to travel for work even now because they are involved in sales or marketing.

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.

Ultimately, 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 the employee be performing their actual duties at the time and can include, for example, contracting coronavirus in an 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, the employer does not need to be found at fault, per se, if the employee contract COVID-19. The flip side of this is that in most cases, an employee cannot sue their 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 866-699-3339 or peter@bellas-wachowski.com.

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