Workplace Exposure to COVID-19Last updated on: June 3, 2020
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In an effort to fight COVID-19 (coronavirus), businesses across the United States have stopped operations, required employees to work remotely from home, and have limited services and business hours. With coronavirus spreading across the globe, legal action is one way for impacted workers to seek relief. Given these unprecedented times, it’s important to know your legal rights and how contracting COVID-19 at work may give rise to a potential legal claim.
CAN I SUE MY EMPLOYER IF I CONTRACTED COVID-19 AT WORK?
Filing a Lawsuit Against a Company that Subscribes to Workers’ Compensation
If you believe you may have been exposed to COVID-19 at work, you may be eligible for workers’ compensation. While many workers’ compensation laws provide compensation for “occupational diseases” that arise out of and in the course of employment, many state statutes exclude “ordinary diseases of life” (i.e. the common cold or flu). The general test in determining whether an injury arises within the bounds of employment is whether the employee was involved in an activity where they were benefiting the employer and were exposed to the virus at work.
For federal employees, the U.S. Department of Labor has created new procedures to address COVID-19 claims. Specifically, “employees filing a claim for workers’ compensation coverage as a result of COVID-19 should file Form CA-1, Notice of Traumatic Injury through your employer.” The type of employment held by the employee is also be evaluated to determine what type of compensation they may be entitled to, rather than burdening the employee with identifying the exact time they may have contracted the virus.
Filing a Negligence Lawsuit Against a Non-Subscriber Company
If a company is a non-subscriber to workers’ compensation, an employer may be held liable under a general negligence standard. A negligence claim would essentially ask, “Was there a duty to exercise reasonable care? Was the employer on notice about a threat to the health and safety of its employees?” If an employer was on notice, meaning they were aware of the situation, then an employer may be liable for forcing an employee to come to work under these conditions. Given the widespread impact of COVID-19, it may be difficult for a company to argue they were not on notice.
Do I Need a Lawyer?
Although workers’ compensation is intended to be an inexpensive alternative to filing a lawsuit, employers and insurance carriers often deny claims or limit benefits. For this reason, seeking advice from an experienced attorney who understands workers’ compensation laws may be extremely helpful to you. A lawyer may help you seek the benefits you need under your workers’ compensation insurance plan.
Additionally, a personal injury attorney may not only help with gathering evidence for a negligence claim, but may also help you establish liability and seek and negotiate fair compensation for your injuries. At Zinda Law Group, our experienced personal injury attorneys have the knowledge and resources necessary to help you build the strongest case possible and to seek the maximum compensation you may be entitled to.
Learn More: Why Hiring a Lawyer Will Help Your Case
HIGH RISK WORKPLACES FOR COVID-19 EXPOSURE
Meat Packing Plants
During the outbreak, meat packaging plants that have remained open have seen a variety of cases. For example, one plant in Colorado had an issue in March 2020 where 3 workers died after contracting the coronavirus. Meat Packaging plants may be prime places for COVID-19 to spread because some plants have failed to implement adequate testing or distancing protocols, have failed to obtain personal protective equipment, and have denied or delayed access to on-site medical facilities.
With Americans at home, shipping and e-commerce companies are scrambling to fill online orders. Some workers, such as Amazon and Walmart employees, often ship groceries and other various essentials. Other employees risk their health for furniture or fashion retailers such as Wayfair, Macy’s or IKEA.
There have been multiple coronavirus cases in warehouses, even in the earlier stages of the outbreak. For example, a worker at an Amazon warehouse in Queens, New York was diagnosed with coronavirus in March 2020. Warehouses may pose risks to coronavirus exposure due to workers having to work in close proximity to each other, a lack of protective equipment or due to employers failing to send workers home after an employee tested positive for COVID-19.
Supermarkets are starting to report their first COVID-19 related employee deaths, causing increased anxiety among the grocery workers. For example, a Trader Joe’s worker in Scarsdale, N.Y., a greeter at a Giant store in Largo, Md., and two Walmart employees from the Chicago area have recently died of coronavirus. One of the biggest mistakes made early on by grocery stores was not allowing employees to wear masks and gloves when the pandemic started intensifying. Some companies have begun installing Plexiglas sneeze guards at cash registers and also require customers to stand 6 feet apart in line. However, many workers today still don’t have enough protective gear to deal with hundreds of daily customers.
OSHA STANDARDS FOR PROTECTING EMPLOYEES FROM EXPOSURE
The Occupational Safety and Health Administration (OSHA) currently has standards that apply to preventing occupational exposure to coronavirus. For example, a standard exists that requires the use of “gloves, eye and face protection, and respiratory protection when job hazards warrant it.” Additionally, “[w]hen respirators are necessary to protect workers, employers must implement a comprehensive respiratory protection program in accordance with the Respiratory Protection standard.” OSHA also provides an overarching authority to make sure companies provide workplaces “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
Under federal law, OSHA has jurisdiction over most workplaces in the U.S. and may issue regulations and enforce them with citations, inspection, and legal action. Although OSHA has issued guidance on how to keep workers safe, the guidance is “advisory in nature” and “creates no new legal obligations.”
WHAT TO DO IF YOU WERE EXPOSED TO COVID-19 AT WORK
The key evidence necessary for a COVID-19 claim are the following:
Proof of Exposure
An employee seeking workers’ compensation should collect evidence showing that they contracted the virus after an exposure at work. Even if an employer takes all the right steps to protect employees from exposure, an employee may still have a compensable claim if they are able to show that the exposure was peculiar to the work and that there are no alternative means of exposure demonstrated.
Additionally, an employee should gather all medical evidence to support their claim. Specifically, an employee should provide medical evidence demonstrating that the diagnosed coronavirus was aggravated, accelerated, precipitated or proximately caused by work-related activities. The U.S. Department of Labor suggests that an employee should acquire a qualified physician’s opinion, based on a reasonable degree of medical certainty, that the diagnosed condition is causally related to an employee’s work conditions. Employers contesting the claim may be able to challenge the evidence if there is another alternative source of exposure or if the employee’s medical evidence is merely speculative.
Learn More: Personal Injury Claims
COMPENSATION FOR COVID-19 EXPOSURE
Short-term medical costs associated with the virus may be limited to visits to the physician and ant-viral medications. In general, compensation may also include to the lost time from work associated with any recovery time. In serious cases involving extensive hospital stays and further complications, you may be entitled to compensation for both past and future treatment.
For federal workers’ compensation, compensation may vary depending on the type of employment involved. For example, if a COVID-19 claim is filed by a person in high-risk employment (e.g. law enforcement, first responders, and front-line medical and public health personnel), “the Office of Workers’ Compensation Programs (OWCP) DFEC [Division of Federal Employees’ Compensation] will accept that the exposure to COVID-19 was proximately caused by the nature of the employment. If the employer supports the claim and that the exposure occurred, and the CA-1 is filed within 30 days, the employee is eligible to receive Continuation of Pay for up to 45 days.”
If a COVID-19 claim is filed by a person who is not in high-risk employment, “OWCP DFEC will require the claimant to provide a factual statement and any available evidence concerning exposure. The employing agency will also be expected to provide OWCP DFEC with any information they have regarding the alleged exposure, and to indicate whether they are supporting or controverting the claim. If the employer supports the claim and that the exposure occurred, and the CA-1 is filed within 30 days, the employee is eligible to receive Continuation of Pay for up to 45 days.”
Learn More: How to Calculate the Value of Case
CONTACT ZINDA LAW GROUP TODAY
At Zinda Law Group, our experienced personal injury attorneys have the knowledge and resources necessary to help you build the strongest case possible and to seek the compensation you may be entitled to.
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