Coronavirus a Workers' Compensation Claim?
In Georgia, we have two types of claims that can be deemed compensable. Workers’ compensation injuries and workers’ compensation diseases. Workers’ compensation injuries are the typical injuries one might think of when they think of workers’ compensation claims. A specific injury that arises “in the course of” employment and also “arises out of” employment. There must be a causal connection to the work being performed and the employee must be reasonable expected to be in the course of his or her duties.
An injury arises out of “the employment” when “a reasonable person, after considering the circumstances of employment, would perceive a causal connection between the conditions under which the employee must work and the resulting injury.” Hennly v. Richardson, 264 Ga. 355-356(1994). It arises “in the course of” employment when it occurs within the period of employment, at a place where the employee may be in the performance of his duties and while he is fulfilling or doing something incidental to those duties.” Id. See also O.C.G.A. § 34-9-1. In other words, a person would have to prove a causal connection between their employment and COVID-19.
However, in Georgia there is a separate category for occupational diseases. O.C.G.A. § 34-9-280. This is a narrowly defined statute. It requires five elements of proof. Specifically, it provides that there must be a direct causal connection between the conditions under which work is performed and the disease, that the disease follows a natural incident of exposure by reason of the employment, that the disease must to have appeared to have its origin and a risk connected with the employment and to have flowed from that source as a natural consequence. In other words, it must be shown that the disease actually came from work. Further, the disease cannot be one to which the general public is exposed. Synalloy Corp. v. Newton, 254 Ga. 74 (1985). The seasonal flu, for example, is not unique to the workplace and not compensable occupational disease under the statute.
Probably the most relevant case on point is Fulton-Dekalb Hospital Authority v. Bishop, 185 Ga.App.771 (1988). In this case it was determined that an emergency medical technician who contracted Hepatitis B did not have a compensable occupational disease because it was a viral disease to which the general public is exposed.
Unfortunately, this doesn’t bode well for potential workers’ compensation benefits for COVID 19 exposure. It certainly does not seem to qualify under the occupational disease statue as it is certainly something to which the general public is exposed. Further, it appears that it would be quite difficult to see it characterized as an injury rather than an occupational disease. There is still no clear guidance on this. However, if it is not deemed a workers’ compensation claim, it is possible there could be remedies against the employer directly in tort since there would be no exclusive remedy preclusion. As always, consult an attorney.