COVID-19 Workers' Comp FAQs
If you have been diagnosed with COVID-19 and are concerned that the exposure may have been work-related, your employer’s workers’ compensation insurance policy may be available to provide comprehensive medical and wage replacement benefits if the condition becomes serious.
Attorneys at Shaheen & Gordon are here to provide advice. Here are some frequently asked questions and answers for your immediate convenience.
To speak to an attorney, please call 800-451-1002.
The state and federal government’s initial legislative response to the growing COVID-19 crisis has mostly been to blunt the economic shock of sudden unemployment. As schools, restaurants and other close contact service industries are temporarily shuttered due to social distancing, many employees are adjusting to working remotely - or tragically, not working at all.
But health care workers are quite the opposite, having been thrust onto the front lines of America’s response to the crisis with constant and close contact with the infected or those with suspected exposure. And a more surprising class of infantry has revealed itself: grocery store stockers, cashiers and baggers. While most of us are hunkering down and trying to stay 6 feet away from everyone, they are managing the crowds at the local Market Basket.
Worried about COVID exposure at work? Some workers may be covered by existing worker’s comp policy.
The governors of New York, California, Illinois, Vermont and other states have commendably classified grocery store employees as emergency personnel to trigger the availability of childcare benefits as they serve and feed the citizenry. Similarly, employees involved in utility and infrastructure maintenance, sanitation workers, court personnel, postal & delivery services and employees of other designated “essential businesses” are also still reporting for duty to keep services available for the health, safety and welfare of the public.
For many workers, the risk of exposure to the coronavirus is simply part of the shared risk we all have by simply being in the country right now. But for workers who are intimately and routinely exposed to the risk of infection – health care workers in particular – contracting COVID-19 on the job means that the resulting treatment and any period of disability may be covered by existing workers’ compensation law.
(The federal Families First Cornonavirus Protection Act passed by Congress, effective April 2, 2020, appears to separately cover the cost of COVID-19 testing, and provides limited wage benefits for up to 14 weeks for some employees: but unlike workers’ compensation coverage, it does not cover the cost of subsequent treatment or any potential period of long term disability.)
If someone contracts COVID at work and dies as a result, their dependents may be eligible for long term, even lifetime wage replacement benefits
I am a healthcare worker. Am I covered?
New Hampshire’s worker’s compensation law defines an “occupational disease” as one “due to causes and conditions characteristic of and peculiar to the particular trade, occupation or employment.” Nurses, doctors and other healthcare workers including administrative staff who have routine exposure to COVID-19 positive patients means that any who contract the virus should have an uncontroversial workers’ compensation claim.
I am a grocery worker or employed by another “essential business.” Am I covered?
The question whether grocery story workers and other employees of “essential businesses” may have a valid workers’ compensation claim for contracting the coronavirus is more uncertain. It is certainly arguable that in the current environment, a Hannaford cashier’s exposure to coronavirus is “peculiar to the particular…employment.” The problem can be one of proof – how can one say that exposure to the virus happened at work rather than elsewhere?
The New Hampshire Supreme Court provides guidance here: where the cause of the injury is unknown, then the court applies what is called an “increased-risk” test. Under the increased-risk test, an employee may recover for an injury if she demonstrates that her injury resulted from a risk greater than that to which the general public is exposed. This can be shown either qualitatively or quantitatively. Therefore, it may be the case that in the current environment, administrative office workers observing social distancing, or sanitation workers who simply operate the vehicle’s remote garbage collection arm and never leave the cab, are not exposed to the risk of contracting coronavirus any more than other members of the general public who drive to the store once a week to pick up groceries. But workers at that grocery store who are exposed to even sparser-than-usual crowds of people are nevertheless quantitatively exposed to more risk of picking up the virus than members of the general public.
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