Member Article

In the wake of the COVID-19 outbreak and the World Health Organization’s declaration of this coronavirus as a pandemic, employers of all sizes have serious, and somewhat unprecedented, issues to consider. Fortunately for most employers, workers’ compensation may not be one of them.

While there is no way to prevent employees who contract COVID-19 from filing workers’ compensation claims, it will be challenging under the current law for most employees to establish a compensable occupational disease claim. To do so, a claimant must prove three elements:

1. The disease was contracted in the course of their employment;
   
   
2. The disease is peculiar to the claimant's employment by its causes and the characteristics of its manifestation, or the conditions of the employment result in a hazard, which distinguishes the employment in character from employment generally; and
   
   
3. The employment creates a risk of contracting the disease in a greater degree and in a different manner than in the public generally.
   
   

The first element requires an evaluation of whether the injured worker was exposed to the virus and received a medical diagnosis, causally relating the diagnosis to their employment. Even when such an opinion has been provided, an employee would still need to prove their employment placed them at an increased hazard and peculiar risk of contracting the virus compared to the public in general.  This will be difficult in a pandemic context.  Certain occupations, such as health care workers and first responders providing direct treatment to patients with the virus, may be exceptions.

There are too many unknowns to allow for a definitive answer at this point, but such claims will need to be carefully examined on their specific facts before a decision on their compensability can be made. It is also possible the Ohio General Assembly or the Bureau of Workers’ Compensation may take action to establish new rules or procedures specific to COVID-19 claims.