Law360 (April 10, 2020, 4:06 PM EDT) --
So while many businesses moved their operations to remote digital platforms and some have been forced to close their doors and lay off employees, essential workers such as health care professionals, first responders, grocers, and transportation and trade and utility workers, among many others, remain active in the field, ready to serve. But as the number of COVID-19 cases continues to grow, more essential workers across various sectors are voicing their concerns for their health and the risks they face on the job.
One concern, in particular, being whether their on-the-job exposure and contraction of COVID-19 would result in the eligibility for workers' compensation benefits should they need to be out of work as a result. Perhaps the more pressing question is whether their families would receive a death benefit should they pass away as a result of that exposure.
The truth is it's hard to say one way or another whether employees — even those deemed essential — and their surviving families would be eligible for workers' compensation benefits for COVID-19 due to on-the-job exposure. Case law specific to COVID-19 and workers' compensation has yet to be established by any state's workers' compensation board, each of which operates by unique rules, statutes and regulations.
While it is possible that some of these instances may qualify as an occupational disease or accident under New York workers' compensation law, depending particularly on the facts of each matter, many predict these claims to be highly controversial and claimants can expect that workers' compensation insurance carriers are likely to fight all such claims filed. It may be months or even years before definitive standards are set in New York and other jurisdictions.
That being said, although guidance specific to workers' compensation and COVID-19 has yet to be established, there are several factors that determine eligibility for workers' compensation in general as well as standing New York case law that sets precedents in matters involving infectious diseases and workers' compensation that may be considered in future cases.
First, who is eligible for workers' compensation in New York state?
In New York, most employees of for-profit businesses, regardless if they are salary or hourly workers, are covered under their employer's workers' compensation insurance. Employees include, but are not limited to, day labor, leased employees, borrowed employees, part-time workers, unpaid volunteers (including family members), and most subcontractors, who are under the direction and control of the employer.
Generally, independent contractors, who work at their own discretion or per specific contract, are not eligible for workers' compensation, and employers do not have to purchase coverage for them. New York workers' compensation law defines criteria for who can be deemed an employee and who is an independent contractor, not the employer itself.
How long do claimants need to be out of work for benefits to apply?
Under Section 11 of New York workers' compensation law, there is a seven-day waiting period. If an injury or occupational disease results in less than seven days of lost time from work, workers' compensation wage benefits cannot be applied. Injuries to some occupations such as volunteer firefighters and EMTs do not have a seven-day waiting period.
Compensation becomes retroactive if the claimant is out of work for more than 14 days from the date of injury, meaning that the workers' compensation insurance company may be found liable to go back to day one and pay for the entire period of disability.
What types of workers' compensation claims can be filed?
Workers' compensation claims can be filed as an occupational disease or an accident.
- Occupational disease: A disease that is a special hazard of the profession and is contracted over the course of employment.
- Accident: An accident occurs when there's a clear connection between the condition and a specific event.
Is there standing New York case law to support a worker's benefits claim for infectious diseases?
The most notable precedents for infectious diseases and workers' compensation were established over half a century ago and involved cases relating to tuberculosis, HIV and AIDS. Some of these cases applied special hazard consideration to health care providers and medical/hospital staff.
Lyden v. United Hospital
This 1949 New York Supreme Court decision established precedent that health care workers, including nurses, doctors and other providers, exposed to TB could claim workers' compensation benefits for an occupational disease even if they are unable to point to a specific incident of exposure that led to their infection.
The case involved a lab technician with no prior history of TB upon entering the profession in 1938 that tested positive for the disease in 1949. Though she could not point to a specific exposure event, the court ruled that she had a compensable occupational disease.
Lachowicz v. Albany Medical Center Hospital
This 1968 New York Supreme Court case involved a maintenance worker who repaired beds and other equipment in a TB ward and contracted the disease. The court determined that his case met the definition of a compensable occupational disease. This has been applied to various matters involving workers' compensation claims for nonmedical staff in medical settings such as janitors, aides and others.
Is there standing New York case law that limits a worker's benefits claim for infectious diseases?
There have been several cases in which New York workers' compensation courts have limited certain occupations from qualifying for benefits under the occupational disease rules.
Paider v. Park East Movers
In this 1966 case, the New York Supreme Court found that just working around TB and being exposed to people who have the disease was not enough for a moving truck driver to qualify for workers' compensation, nor is it enough to just catch the disease from a co-worker.
Harman v. Republic Aviation Corp.
In the Harman case in 1948, the New York Court of Appeals reversed an award predicated on the board finding that TB contracted through the claimant's contact with a fellow bench worker in an aircraft factory was not an occupational disease.
Buckley v. Gallagher Brothers Sand & Gravel Corp.
In another TB case in 1950, the New York Court of Appeals ruled in Buckley v. Gallagher that a bookkeeper was not eligible for workers' compensation because she contracted TB from a co-worker, and it wasn't her occupation that caused the infection.
Longshore v. United Seamen's Service Inc.
In this case in 1955, the New York Supreme Court found that having a job that required travel and, therefore, an increased risk of contracting a disease was also not enough to qualify for workers' compensation benefits.
Existing case law relating to the TB epidemic restricts workers' compensation benefits for occupational diseases to health care workers and nonmedical employees working in the medical care setting. Flight attendants, taxi drivers and waiters, historically, have not been eligible for workers' compensation benefits related to occupational diseases such as TB.
In the 1980s and 1990s, the courts restricted the definition of occupational disease even further in cases that involved HIV and AIDS.
Artiste v. Kingsbrook Jewish Medical Center
In this 1996 decision, the New York Supreme Court found that a nurse's aide who was pricked by a needle in 1989 and later diagnosed with AIDS did not have a case for workers' compensation, as HIV exposure by blood-contaminated objects was not a generally recognized risk of her occupation.
Do claimants need to work in an occupation with a special hazard consideration to file an accident claim?
No, anyone who is eligible for workers' compensation in New York state regardless of what occupational sector they belong to may file a workers' compensation accident claim.
However, it's important to note that a claimant must prove that a specific event occurred during the course of his or her employment that ultimately led to their infection to be awarded benefits for an accident. With COVID-19 being named a widespread pandemic, it may be difficult — but not impossible — for claimants to determine a singular specific exposure incident that occurred on the job.
How much coverage can a claimant receive through workers' compensation?
Should the best-case scenario for the claimant occur and he or she be approved for their workers' compensation benefits claim for an infectious disease like COVID-19, workers' compensation would pay for all reasonable and necessary medical treatment relating to the occupational illness or accident. This may include mileage reimbursement for travel to and from medical appointments for treatment.
In addition, a claimant may be able to receive a compensation benefit to cover part of his or her lost wages. As mentioned previously, this coverage does not apply to the first seven days an individual is out of work unless he or she is out of work for more than 14 days.
Total Temporary Disability
Individuals deemed unable to work at all by a medical professional may be eligible to receive two-thirds of their average weekly wages, up to the maximum amount of $934.11 (for injuries between July 1, 2019, and June 30, 2020).
Partial Temporary Disability
- If individuals haven't returned to work, but a medical professional assigns a disability level of less than 100%, they'll receive two-thirds of their average weekly wage multiplied by their percentage of disability, up to the maximum annual cap mentioned above.
- If Individuals have returned to work but earn less due to injury, they may be able to recover two-thirds of the difference in their wages, up to the maximum annual cap.
What happens if a worker passes away as a result of their injury?
Surviving family members of individuals covered under New York workers' compensation law may be entitled to death benefits should they pass away due to a covered accident or occupational disease. If the worker passes away as a result of their compensable injury or occupational disease, "the surviving spouse and/or minor children or other dependents, if the deceased had neither a surviving spouse or children, may be entitled to two-thirds of the deceased's average weekly wage for the year before the injury."
This weekly compensation cannot exceed the weekly maximum, regardless of the number of dependents, and is split between them. If no surviving spouse or dependents exist, the deceased's parents or the estate may be entitled to a lump sum of $50,000. In addition, the workers' compensation insurance may also cover funeral expenses, up to $12,000 in metropolitan New York counties and $10,500 in all other counties.
Claims for workers' compensation benefits relating to workplace exposure to COVID-19 are likely to be controversial. Although the workers' compensation board may deny initial filings, given prior case law discussed, an individual may have a claim.
Edward Guldi is an attorney at The Perecman Firm PLLC.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 New York State Workers' Compensation Board. (n.d.). Who Is an Employee Under the Workers' Compensation Law? Retrieved March 27, 2020, from http://www.wcb.ny.gov/content/main/Employers/Coverage_wc/emp_empDefinition.jsp.
 Lyden v. United Hosp.  275 A.D. 877, 88 N.Y.S.2d 743 (App. Div. 3rd Dept. 1949).
 Lachowicz v. Albany Med. Ctr. Hosp. , 30 A.D.2d 1004, 294 N.Y.S.2d 186 (App. Div. 3rd Dept. 1968).
 Paider v. Park E. Movers , 25 A.D.2d 62, 62-63, 267 N.Y.S.2d 12, 13-14 (App. Div. 3rd Dept. 1966).
 Harman v. Republic Aviation Corp. , 82 N.E.2d 785 (NY 1948).
 Buckley v. Gallagher Bros. Sand & Gravel Corp. , 300 N. Y. 447, 448 (NY Court of Appeals 1950).
 Longshore v. United Seamen's Serv., Inc. , 146 N.Y.S.2d 791 (App. Div. 3rd Dept. 1955).
 Artiste v. Kingsbrook Jewish Med. Ctr. , 221 A.D.2d 81, 645 N.Y.S.2d 593 (App. Div. 3rd Dept. 1996).
 New York State Workers' Compensation Board. (n.d.-b). Workers' Compensation Benefits. Retrieved March 27, 2020, from http://www.wcb.ny.gov/content/main/onthejob/wcBenefits.jsp.
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