As is now common knowledge, Covid-19, commonly called the "novel coronavirus" or just the "coronavirus," is spreading rapidly across the many parts of the world, including California. Countries around the world are taking dramatic steps to combat the spread of the virus. What does this mean for workers' compensation in California?
Opinions vary as to how severe this threat is, but any controversy aside, steps are being taken. With the number of confirmed cases in California increasing, on March 4, 2020, California Governor Gavin Newsom declared a state of emergency to slow the spread of coronavirus. Governor Newsom explained the declaration was intended to help California prepare for and contain the spread of the coronavirus by allowing state agencies to more easily procure equipment and services, share information on patients and alleviate restrictions on the use of state-owned properties and facilities.
While governments around the world fight against the spread of the coronavirus, employers in California must also take action to protect their employees against the spread of the disease. Otherwise, they could potentially be liable for injuries or death caused by the virus.
Like the common cold or the flu, the coronavirus would be considered a nonoccupational disease, which is one that is not contracted solely because of an exposure at work or because it is related to a particular type of work. Generally, injuries from nonoccupational diseases are not compensable. As with much of the AOE/COE law in California, however, there are significant exceptions. The law is discussed in depth in Sullivan On Comp Section 5.9 Occupational Disease. A look at the binding case law is in order.
Just catching the disease at work will not be enough in and of itself to establish compensability. The Supreme Court of California explained in Latourette v. Workers' Comp. Appeals Bd. (1998) 17 Cal.4th 644, 654, that "[I]n the area of nonoccupational disease, '[t]he fact that an employee contracts a disease while employed or becomes disabled from the natural progress of a nonindustrial disease during employment will not establish the causal connection.'" The court explained, "The narrower rule applicable to infectious diseases arises from the obvious problems of determining causation when the source of injury is of uncertain etiology, the product of invisible and often widespread viral, bacterial, or other pathological organisms. The potentially high costs of avoidance and treatment for infectious diseases, coupled with the fact that such illnesses often cannot be shown with certainty to have resulted from exposure in the workplace, also explain the different line-drawing by our courts in the area of nonoccupational disease." (Ibid.)
Nevertheless, there are two exceptions to the general rule of noncompensability for nonoccupational disease. An injury resulting from a nonoccupational disease may be compensable if:
1) The employment subjects the employee to an increased risk compared to that of the general public; or
2) The immediate cause of the injury is an intervening human agency or instrumentality of the employment.
The first exception is exemplified by the case of Bethlehem Steel Co. v. Industrial Acci. Com. (1943) 21 Cal.2d 742. In that case, employees working in shipyards contracted the contagious eye disease known as kerato conjunctivitis. Although there was evidence the disease was also epidemic in San Francisco, the Supreme Court found the evidence "quite convincing that the disease in the community outside of the shipyards was of much less proportion compared to the population." It found "the epidemic in the shipyards constituted a special exposure in excess of that of the commonalty." (Id. at pp. 749-750.) Therefore, the Supreme Court found evidence that the employees' risk of contracting the disease by virtue of the employment was materially greater than that of the general public and affirmed a decision finding the employees' claims compensable.
Thus, if an employee could demonstrate that he or she had a greater risk of exposure at the workplace compared to that of the general public, the courts could find an employee's exposure to the coronavirus compensable. Per Bethlehem Steel, this could be established if the evidence establishes a greater proportion of the employees at the worksite were exposed than the general population such that they were subject to special exposure. If an office or worksite has a higher percentage of coronavirus cases than the general public, then that employer could be liable for injuries or deaths related to the virus.
Another example of the first exception is illustrated by the case of Pacific Employers Ins. Co. v. Industrial Acci. Com. (Ehrhardt) (1942) 19 Cal.2d 622. There, the California Supreme Court awarded compensation benefits to a traveling salesman who contracted a respiratory illness caused by a mold or fungus that exists in California's San Joaquin Valley and in Arizona, commonly known as San Joaquin Valley fever. Before his employment, the salesman had never been to either region. The court stated, "It was by reason of and incident to his employment that he came in contact with the infection. The risk to which he was subjected by his employment was not the same as that of the public in the endemic area inasmuch as the great majority of the inhabitants there possessed an immunity to the disease which [the employee], living outside the area, lacked." (Id. at p. 630.)
Therefore, if the employment places an employee in a position of greater risk to the coronavirus than the general public, the courts could also find an employee's exposure to the coronavirus compensable. Doctors, nurses, or other health care workers, who are required to treat patients with the coronavirus could potentially file their own workers' compensation claim if they contract the virus. Moreover, employees who are required to work in close proximity to large numbers of people could argue they are subject to an increased risk compared to that of the general public.
The second exception is exemplified by the case of Maher v. Workers' Comp. Appeals Bd. (1983) 33 Cal.3d 729. In that case, a nurse's assistant had pre-existing tuberculosis, which she was required to treat to continue working. While undergoing treatment, she developed a significant adverse reaction to the drugs, and she filed a claim for workers' compensation benefits based on the disability she sustained as a result of her treatment for tuberculosis. The Supreme Court held that an injury caused by employer-required medical treatment for a preexisting, nonindustrial injury is compensable. (Id. at p. 738.)
So, even if the employee cannot establish the coronavirus occurred at work, or even if it was established the infection occurred outside of the employment, per Maher, the employer could be liable if the employment aggravated the condition. This is because of the long-established rule that "an employer takes the employee as he finds him at the time of the employment." (Ballard v. Workmen's Comp. App. Bd. (1971) 3 Cal.3d 832, 837.) If the coronavirus causes the death of an employee, the death may be compensable so long as the employment was a contributing cause. (See South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291.)
Thus, not only should employers take actions to protect the employees from contracting the coronavirus, they should take actions to make sure that employees who are potentially infected with the virus do not aggravate their conditions at work. The precise actions that need to be taken will vary depending on the nature and needs of the business.
Many businesses are already allowing their employees to work from home. Of course, this is not possible for many businesses and employees. For those who cannot work at home, it goes without saying that employees who are sick should not be permitted to work, particularly if they work with the public. Attendance to what preventative measures may be taken, such as hand sanitizers and the like, or limitations on physical forms of contact, seem to be good ideas. Many employers are withdrawing their employees from public gatherings, such as conventions or meetings, and some are restricting business travel. Whether this sort of thing is necessary or when it may become necessary is a choice each business must make, in light of the overall health and well being of the employees and the business itself. Accordingly, close awareness of the progression of the disease is warranted.
1) Karlamangla, S. et al. (2020, March 6) A Grand Princess cruise ship was at center of coronavirus fight amid concerns about spread. Retrieved from https://www.latimes.com/california/story/2020-03-04/los-angeles-county-declares-coronavirus-emergency-6-new-cases