This is going to be Part VI of our COVID-19 Q&A. These are just questions that are coming in hot from our various employers and subscribers. We want to help before we dive in too deep. Today, what we're going to be talking about employer liability concerning this worker's comp, basically, and so we're gonna go into kind of the ins and outs of that before we do though, please take a moment to subscribe makes a huge difference. You can subscribe on the pod catcher of your choice. That's iTunes, Google podcast, Spotify, Stitcher, whatever. But also subscribe at peopleprocesses.com. Information is changing quickly. We're providing tons of subscriber only content, like our sample communication letters furlough notices charts and explanations for quick reference, all sorts of sample policy versions of the FFCRA pieces. We want to get those out to you quickly. Podcasts are hard to get a lot of info out like that. So subscribe to People Processes for us so you can get a copy as well. 

All right, let's dive right in. Here's the first question. 

My employee may allege or it has alleged that they contracted the coronavirus while at work, will this result in a compensable worker's compensation claim? 

This is the key question. And the answer is it depends if the employee is a healthcare worker or a first responder, the answer is likely yes (subject to some variations in state law), but in most cases absolute darn lewdly. For other categories of employees, an actual workers compensation claim is possible, but the analysis would be very fact-specific.

It's important to note that the workers' comp system is an unknowable fault system, meaning that an employee claiming a work-related injury does not need to prove negligence or anything on the part of the employer. Instead, the employee needs only prove that the injury occurred at work and was approximately caused by their employment. Additionally, the virus is not an "injury" but is instead analyzed under state law to determine if it's an "occupational disease," those vary. 

To be an occupational disease, (again with some state law variations), an employee must generally show two things: 

the illness or disease must be "occupational", meaning that it arose out of and was in the course of employment; and 

the illness or disease must arise out of or be caused by conditions peculiar to the work and creates a risk of contracting the disease in a greater degree and in a different manner than in the public generally. 

As for the other categories of employees, compensation for a workers' comp claim is going to be determined on a case-by-case basis. The key point will be whether the employee contracted the virus at work and whether the contraction of the disease was "peculiar" to their employment. For example, if they were in full furlough, they never left their house ever. Period. No grocery. It’s nothing. The only time they came out was to work in your grocery store. Well, they could have a strong claim that if they get the disease, it's from that. Even if the employer takes all the right steps to protect their employees from exposure, a compensable claim may be determined where the employee can show that they contracted the virus after an exposure, the exposure was peculiar to work, and there were no alternative means of exposure demonstrated. 

Absent any state legislation on this topic, an employee seeking workers' comp benefits for coronavirus infection would still have to provide the medical evidence to support the claim. Employers who seek to contest such a claim may be able to challenge the allowance if there is another alternative exposure or if the employee's medical evidence is speculative. 

Finally, employers should be aware that states are taking action on this issue. For instance, Washington Governor Jay Inslee recently directed the Department of Labor and Industries to "ensure" workers'...