An injured worker may seek to establish compensability of the contraction of COVID-19 under two legal theories:
- Exposure; and,
- Occupational disease.
Pursuant to Florida Statutes §440.02(1), an injury or disease:
caused by exposure to a toxic substance is generally not an injury or accident arising out of employment.”
Although this section has not been utilized in the context of a virus, it is assumed, for the purposes of this discussion, that the virus is considered a toxic substance.
Exposure
In order to sustain an argument for compensability, under exposure analysis, an injured party must present clear and convincing evidence establishing exposure to a specific substance, the levels to which the employee was exposed and that the particular level of exposure caused the injury or disability pursuant to §440.02(1), Florida Statutes (2003).
In this context, a prospective injured worker must prove the above by clear and convincing evidence that the exposure occurred in the course and scope of their employment. The following must be established:
- exposure to the virus;
- the level of exposure to the virus; and
- the exposure caused the disease.
In general, workers’ compensation claims are controlled by the competent substantial evidence rule. However, as referenced above, any claim grounded in exposure requires a heightened burden of proof: clear and convincing evidence. Therefore, the injured worker must present clear and convincing evidence of an exposure, or series of exposures, to the coronavirus while at work or while engaged in work activity and the specific level to which they were exposed to the virus, either by in person contact or from some other agent.
It seems difficult to secure and present evidence of the levels in which a worker was exposed to any virus given the generally accepted premise that the virus has an incubation period of approximately two weeks. In addition, an injured worker must present testimony or evidence that during the appropriate incubation period that he or she did not participate or undertake any non-work related activities that may have resulted in exposure to the virus.
Occupational Disease
When considering “front line” workers, a prospective claimant may seek compensability under the occupational disease theory. Pursuant to Florida Statutes §440.151, certain occupational diseases are considered compensable. Contracting a disease would be considered a compensable injury or accident, in certain circumstances. The requirement established by Florida Courts in determining whether a disease is work related has been stated as follows:
if the disease is an ordinary disease of life, the incidence of such a disease must be substantially higher in the particular occupation than in the general public.”
See Lake v. Irwin Yacht & Marine Corp., 398 So. 2d 902, 904 (Fla. 1st DCA. 1981).
This section requires occupational diseases:
- to result from the nature of the employment;
- to have been actually contracted while engaged in the employment; and
- to result from the nature of the employment as the major contributing cause.
Major contributing cause must be shown by medical evidence only, including diagnostic testing. In determining whether contraction of the virus resulted from “the nature of the employment” an injured work must show that the occupation in which he or she was engaged is different from usual occupations or, that the incidence of a disease is higher in that particular occupation as compared to the general public. It may be difficult to prove that the major contributing cause for the contraction of the virus was employment when prospective claimants also participate in non-work related activities.
Florida Orders Coverage for Front-Line Workers
It should be noted that on March 30, 2020, Florida’s Chief Financial Officer Jimmy Patronis, directed the Division of Risk Management to provide workers’ compensation coverage to state employees who are fighting COVID-19. The directive provides coverage for state officials whose responsibilities require interaction with individuals who are, or may be, infected with the coronavirus. However, under the CFO’s directive, state agencies can choose to opt-out of coverage. The Florida Office of Insurance Regulation issued an Informational Memorandum OIR-20-05M on April 6, 2020, which reminded all Regulated Entities of F.S. $440.09, and stated
First responders, health care workers, and other that contract COVID-19 due to work-related exposure would be eligible for workers’ compensation benefits under Florida law.”
Bottom Line
Therefore, whether contraction of the current coronavirus (COVID-19) would be considered a work related accident for which compensation would be due is dependent on whether the injured worker can satisfy one of the legal theories identified above.
Florida employers, if you have questions regarding the above or any other coronavirus-related workers’ compensation matter, please feel free to contact me at spencer.shaw@henlaw.com or by phone at 239-344-1132.