March 12, 2020

COVID-19: What Employers can do, and Potential Workers’ Compensation Liability

March 12, 2020

COVID-19, also known as Coronavirus, was recently designated a global health emergency and pandemic by the World Health Organization.  Originating in Wuhan, China in December, 2019, the disease has now spread across the globe and continues to spread throughout parts of the United States.  While a majority of cases we have seen to date are relatively mild in terms of symptoms (i.e. fever, cough, shortness of breath, etc.), the disease is quite contagious, has caused a number of deaths globally, and is of higher risk to the elderly and individuals with underlying comorbidities.  The question then posed is what duties employers may have to their employees in relation to the spread of COVID-19, and whether an employee that contracts COVID-19 may have a workers’ compensation claim.

While an employer cannot outright ban personal travel, employers should consider restricting non-essential travel, including conferences and in-person meetings with large groups.  While personal travel cannot be banned by the employer, employers may consider requesting employees inform the employer if they are traveling to high-risk areas. Furthermore, if an employee has traveled to high-risk areas of the world such as East Asia or Europe, employers should consider informing the employee to remain away from the workplace, and undergo a self-quarantine for fourteen days.

One of the current issues concerns whether an employee that contracts COVID-19 may have a workers’ compensation claim if contracted in the workplace.  In Illinois, the question of compensability comes under the Occupational Diseases Act. Under the OD Act, an ordinary disease of life comes within the definition of an “occupational disease” as long as it is caused or aggravated by an employment-related risk, and it still must, “arise out of and in the course of the employment.”  We have seen claims like Hepatitis, MERSA, and other viral infections be held compensable in the past. However, the employee would need to prove that he or she contracted the virus from the employment and not the general public, which could in theory be more difficult as the virus spreads throughout the general population; in other words, arguably we are all at an equal risk for contracting the virus.   In contrast, high-risk employees (i.e. healthcare workers, transportation industry workers, etc.), may have an easier path towards proving compensability. It is important to remember that just because it is compensable, does not mean that the claim will render very much by way of benefits (i.e. small amounts of permanency, if any, as well as lost time and medical), unless the employee that contracts the disease suffers something more than being sick for a few days.

As COVID-19 is an ever evolving situation, we will continue to provide updates.  If you have any questions on the possible impact of COVID-19 on your business, and possible precautions you can take from a legal standpoint, please contact us at Wiedner and McAuliffe by email or phone at 312-855-1105.