Defending a COVID-19 Workers’ Compensation Claim

With the total number of COVID-19 cases in Ohio continuing to increase every day, along with the number of deaths and extended hospitalizations, there is no doubt that we will soon see workers’ compensation claims filed for COVID-19 illnesses.

Under the current workers’ compensation laws in Ohio, there are two types of occupational disease claims that can be filed. The first type falls under one of the listed or scheduled conditions found under ORC §4123.68. For the listed conditions, proof is only required that the condition was acquired during the course of the claimant’s employment in order for the claim to be allowed. Conditions such as silicosis and chemical poisoning are examples of conditions found in the list.

For illnesses or conditions that are not listed, the injured workers’ burden of proof is more involved. The claimant must prove that:

1. The disease was contracted during the course of the claimant’s employment,

2. The disease is peculiar to claimant’s employment or claimant’s employment created a greater risk of contracting the disease than what would be expected from employment in general, and

3. The claimant’s employment created a greater risk of contracting the disease and in a different manner than what would be experienced by the general public.

COVID-19 is not on the schedule of recognized occupational diseases under the statute so claimants asserting this condition must prove all three factors. An employee that can prove that they contracted the virus while at work would still have to establish that their job regularly puts them in contact with people who may have the virus and creates a greater risk of contracting the disease than someone in the general public. For instance, healthcare workers, nursing home employees and prison workers who contract the virus at work might be able to pursue a claim. But also other types of employment that require close contact with coworkers and/or customers could provide the basis for a valid claim.

With the current COVID-19 outbreak and lockdowns ordered, some counsel may try to expand the concept of the “zone” of employment. For instance, what about employees that are required to leave home during a lockdown because they are essential employees and are exposed when traveling to work? During a lockdown, a claimant could assert that any infection acquired when away from home should be recognized because the claimant would not have been away from home but for his or her job.

Also, keep in mind that with the current requirement that every employer maintain a workplace safety plan, as well as the tracking and reporting requirements for any infections, there will be a lot more evidence and data available to both the claimant and the employer when evaluating these types of claims.

It will be important for employers to maintain good records with regards to workplace infections and of employees that claim workplace infections. It will also be interesting to see if the Industrial Commission and the courts broaden the concept of the zone of employment just because of the unusual situations we are experiencing with a statewide lockdown.