A Preliminary Assessment of Potential California Workers' Compensation Liability Related to the Coronavirus

• Publication year: 2020
• Author: The Hon. Raymond F. Correio (Ret.) Encino, California

A Preliminary Assessment of Potential California Workers' Compensation Liability Related to the Coronavirus

The Hon. Raymond F. Correio (Ret.) Encino, California

Introduction

There is reason to believe that the holdings and related legal principles derived from the key cases discussed in this article will govern and control determinations of whether an alleged work-related exposure to the coronavirus is compensable as an injury arising out of and in the course of employment (AOE/COE).

However, it should be stressed that the coronavirus and the disease it causes, COVID-19, are different in many ways from other viruses and infectious diseases in terms of potential workers' compensation liability issues. The World Health Organization has officially declared the coronavirus a worldwide pandemic, while currently, the seasonal flu is not. In addition, the coronavirus is highly virulent and contagious and, unlike the flu, asymptomatic infected individuals may, for an as yet unspecified period of time, unknowingly transmit it to uninfected individuals both outside and in the workplace. As the cases discussed in this article indicate, even if an employer implements stringent precautionary measures to protect its employees from exposure to the coronavirus, the employer may not be completely insulated from potential workers' compensation liability. This may be the case if an employee can establish they contracted the virus related to an exposure particular to the work and that created a special or increased risk—materially greater than the exposure common to the general public—of contracting the virus.

Also, unlike regulations regarding the seasonal flu, the Occupational Safety and Health Administration (OSHA) requires that any incidents of employees contracting the novel coronavirus at work are deemed recordable illnesses, subject to the same rules and failure-to-record fines as other workplace injuries and illnesses. OSHA specifically exempts employers from recording incidents of employees contracting common colds and the seasonal flu in the workplace. For more information, go to www.osha.gov/SLTC/covid-19/standards.html and www. dir.ca.gov/dosh/dosh_publications/ATD-Guide.pdf.

At the time of this writing, the CDC believes that the first coronavirus symptoms may appear either a few days or as long as 14 days after initial exposure. Therefore, assessing the myriad scenarios where there may be workers' compensation liability when an employee alleges they have contracted the coronavirus while at work will be extremely challenging. In terms of injury AOE/COE and potential compensability of an alleged coronavirus industrial injury, the most difficult issue is determining whether specific work duties and assignments or a condition or conditions particular to the work environment created a special or an increased risk of the employee contracting the coronavirus, to a greater degree and in a different manner than in the general public.

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Nonoccupational Diseases and Special Exposure or Special Risk Exceptions—Case Law

There are numerous cases holding that nonoccupational disease claims regarding common colds, the flu, and similar viral diseases are compensable only if the employee has established there was a special exposure to the particular disease or disease-causing agents, creating an increased risk that is materially greater than what the general public experiences. A nonoccupational disease is characterized as one not contracted solely due to work exposure, unlike an exposure attributable to a particular type of work, such as coal miners' exposure to the conditions that cause black lung disease.

The "special exposure" exception has also been characterized in workers' compensation law as employment that causes an "increased risk," a "materially greater risk," or where there is a "higher probability" of the employee contracting the particular disease than the general public. To establish compensability, an employee must prove that the risk of contracting the disease by virtue of employment is materially greater than that of the general public (see Bethlehem Steel Company v. IAC (George) (1943) 21 Cal.2d 742).

The leading case, which is still good law, is from the California Supreme Court, in Pacific Employers Ins. Co. v. Industrial Acc. Com. (Ehrhardt) (1942) 19 Cal.2d 622. In Ehrhardt, the applicant was a coffee salesman whose sales route included the San Joaquin Valley, where he was exposed to dust and fungal spores that cause San Joaquin valley fever (coccidioidomycosis). The applicant...