Americans have begun the slow process of re-opening the economy amidst the COVID-19 crisis, though they do so with some hesitation, waiting to see whether the return to work will lead to new spikes in COVID-19 cases if not fatalities. All eyes are on New York State, and New York City, specifically, the “epicenter” of both America’s COVID-19 cases and the national economy. It is undoubted that new cases will occur, and not only because of the increase in testing: the risk is particularly great for those whose jobs require in-person interaction (i.e., they cannot work from home) and who continue to rely on public transportation to get to work. Moreover, it remains unclear at this writing whether individuals who have “recovered” from the virus are still subject to a risk of reinfection and perhaps other complications. In essence, workers will be required by their employers to return to work in the face of a nontrivial risk of transmission from coworkers or workplace conditions. This raises the question whether New York’s workers’ compensation system will provide an adequate remedy for workers who contract the virus at work.
Generally speaking, workers’ compensation present in many states exchanges a no-fault, insurance compensation scheme for workplace injuries for court-based tort remedies; workers receive compensation and medical benefits but are generally barred from suing their employers in tort. New York’s law covers “accidental injuries arising out of and in the course of employment,” N.Y. Workers’ Comp. Law (“WCL”) § 2(7), or “disabilities sustained or death incurred . . . resulting from . . . any and all occupational diseases” incurred on the job, § 3(2). If workers are covered by the law and suffer from a compensable injury, they will receive about two-thirds of average weekly wages while disabled, § 15, and medical treatment for the injury, § 13. In return, employers’ liability under workers’ compensation is, with exceptions, “exclusive and in place of any other liability whatsoever,” § 11. Most workers, unless properly classified as independent contractors, are covered; the issue then is whether individuals who contract COVID-19 in the workplace have a covered workplace “injury” or suffer from a covered “occupational disease.” Our view is that under the existing—though admittedly sparse and dated—case law, most workers can receive workers’ compensation for injuries caused by COVID-19 infection, although there are hurdles workers must clear to prove those injuries are compensable.
Coverage for contracting COVID-19 is less likely under the “occupational disease” provision than as a workplace “injury.” The term “occupational disease” is defined in WCL § 2(15) as “a disease resulting from the nature of employment and contracted therein.” In In re Goldberg v. 954 Marcy Corp., 276 N.Y. 313, 316, 319, 12 N.E.2d 311, 312-13 (1938), the New York Court of Appeals interpreted “occupational disease” to refer to diseases “resulting from the ordinary and generally recognized risks incident to a particular employment,” as opposed to diseases “resulting from the general risks and hazards common to” everyone. There, a theater ticket booth cashier’s claim complaining of inadequate heating was denied because the cashier’s “occupation was that of handling cash and theatre tickets” and that “this work in and of itself could not have caused the leg injury or disease” such that any resulting leg weakness was not an occupational disease. Under the Goldberg conception, courts have largely been unwilling to deem infections caught at work as occupational diseases. For example, an occupational disease claim was denied for a “foreman’s assistant” who caught tuberculosis from a coworker working at a nearby bench and with whom he “conferred constantly on jobs that would ‘tie in together,’ shared tools, and . . . talked over the same telephone . . . .” In re Harman v. Republic Aviation Corp., 298 N.Y. 285, 287, 82 N.E.2d 785, 785 (1948). The risk of catching tuberculosis derived from contact with the coworker, rather than any risks inherent to being a foreman’s assistant: “Any one, whether supervisor, laborer, factory hand or clerical worker, in any field of work, in any occupation or employment, whether factory, store or office, may contract tuberculosis, given a fellow worker already ill with that disease.” In another case, In re Paider v. Park East Movers, 19 N.Y.2d 373, 379, 227 N.E.2d 40, 43 (N.Y. 1967), the court rejected a truck driver’s claim of occupational disease for catching tuberculosis from a mover because “the hazard was [the mover], not any peculiar feature of claimant’s employment as a truck driver”.
The one area where courts have been willing to find infection as a covered occupational disease concerns healthcare workers. Consider In re Nathan v. Presbyterian Hospital in New York, 411 N.Y.S.2d 419, 420, 66 A.D.2d 933 (3d Dep’t 1978), where the court held that a nurse who was diagnosed with tuberculosis after being “exposed for a period of about 12 days to a patient who was discovered to have active tuberculosis” suffered from a covered occupational disease. The court reasoned: “[D]espite whatever precautions may be taken to prevent exposure, the danger of exposure is ever present to all nurses. The work exposure to which all nurses are subjected is sufficient to meet the essential tests of occupational disease.”
As with tuberculosis, nurses and other healthcare workers are at a heightened risk of exposure for COVID-19, suggesting that for those workers courts will find that infection amounts to an occupational disease. This outcome has been hinted at by the New York Workers’ Compensation Board, which in June released a bulletin stating that “[i]ndividuals who work in an environment where exposure risks are significantly higher are more likely to have compensable COVID-19 claims.” Such individuals include “health care workers, first responders, transportation workers, corrections officers, and food service workers.” While courts are yet to weigh in on this issue, the Board’s guidance indicates that it considers COVID-19 an occupational disease for healthcare workers, and perhaps other public-facing occupations.
Outside of the healthcare context, however, workers seeking coverage for a COVID-19 infection contracted at work will need to show they are suffering from “accidental injuries arising out of and in the course of employment . . . .” WCL § 2(7). While it might seem counterintuitive for a disease such as COVID-19 to be considered an “accidental injury,” New York courts treat diseases as accidental injuries if two conditions are met. First, a claimant must be able to show that she was infected “during the course of employment” from “a determinate or single act, identified in space or time.” In re Lerner v. Rump Bros., 241 N.Y. 153, 155-56, 149 N.E. 334, 335 (1925) (finding that catching a cold “while showing fruit and vegetables to a customer . . . in the refrigerator of said employer’s plant” was “exposure . . . occurring at a definite time and place . . . .”). This criterion is to be evaluated by the “commonsense viewpoint of the average man,” and the claimant need not “pinpoint the exact date on which the incident occurred.” In re Middleton v. Coxsackie Corr. Facility, 38 N.Y.2d 130, 134-35, 341 N.E.2d 527, 530 (1975). That is why New York’s highest court was able to find in Middleton that a correctional officer in repeated contact with an inmate suffering from tuberculosis satisfied “the time-definiteness required of an accident,” and falling ill with tuberculosis himself marked “a determinable event,” even if he could not show the exact instance when the inmate gave him tuberculosis.
There are, of course, limits to the “determinate act” criterion. For instance, in Albrecht v. Orange County Community College, 403 N.Y.S.2d 144, 61 A.D.2d 1068 (3d Dep’t 1978), the court denied the claim of a professor who contracted and died of polio while researching in Ghana. While the court acknowledged that polio “infected the decedent while in Ghana” it found that “there is no indication of a particular incident to mark the invasion by the polio virus.” For this reason, the court held that the professor contracting polio was “not as the result of an ‘accident’ within the meaning of the Workmen’s Compensation Law.” In other words, simply getting sick with COVID-19 may be insufficient to establish a covered accidental injury. The claimant must be able to point to “a determinate act”—be it a particular interaction with a sick coworker, an epidemic in the specific workplace, etc.—that allows a court to infer that an accident occurred. See, e.g., In re Gardner v. New York Medical College, 113 N.Y.S.2d 394, 395, 280 A.D. 844, 844 (3d Dep’t 1952) (finding “a fellow nurse sneez[ing] into [claimant’s] face while both were riding in an elevator” to be “a determinable event assignable to something extraordinary”); In re McDonough v. Whitney Point Central School, 222 N.Y.S.2d 678, 679-80, 15 A.D.2d 191, 191-93 (3d Dep’t 1961) (holding the “contraction of mumps by a first-grade school teacher during an epidemic” to “fit precisely within this definition” of an accidental injury, including a determinate act).
Second, a disease must “be assignable to something catastrophic or extraordinary” for it to be considered an accidental injury—a requirement the New York Court of Appeals solidified in Lerner, 241 N.Y. at 155, 149 N.E. at 335. Though “catastrophic or extraordinary,” sounds like a high bar to clear, the phrase has been interpreted broadly: “receiv[ing] the effect of . . . a sneeze . . . fits within the classic definition of an ‘accident’ which causes a disease . . . .” In re Gardner v. New York Medical College, 113 N.Y.S.2d 394, 395, 280 A.D. 844, 844 (3d Dep’t 1952). Indeed, when affirming the claim of a nurse who contracted polio from a sick colleague sneezing in an elevator, the Gardner court noted that a disaster is not required. Put simply, “catastrophic or extraordinary” implies “a mishap or an accident,” something out of the ordinary. In re Connelly v. Hunt Furniture Co., 240 N.Y. 83, 86, 147 N.E. 366, 367 (1925) (holding that “gangrenous matter” which “entered a little cut” in an embalmer’s hand resulting in infection was an accidental injury).
Contagion from customers or coworkers should suffice as being catastrophic or extraordinary. In In re McDonough v. Whitney Point Central School, 222 N.Y.S.2d 678, 679, 15 A.D.2d 191, 191-92 (3d Dep’t 1961), the court found that a schoolteacher of a class of thirty-two students, eight to ten of whom were absent because of the mumps, had a valid workers’ compensation claim for contracting the mumps herself amidst a schoolwide epidemic. Another New York decision found that a caregiver who caught scarlet fever while caring for sick children in a quarantined facility had a valid claim of accidental injury, since “the medical evidence shows that scarlet fever is extremely contagious” and the matron got sick within the fever’s incubation period of “twenty-four hours to one week.” In re Gaites v. Society for Prevention of Cruelty to Children, 295 N.Y.S. 594, 595, 251 A.D. 761, 762 (3d Dep’t 1937).
We think there is a good case for coverage under the workers’ compensation law. Of course, the New York State Legislature or Governor Cuomo can clarify matters greatly by declaring that injuries stemming from workplace exposure to COVID-19 are compensable under the state law. In California, Governor Newsom issued Executive Order N-62-20, which provides that COVID-19 “shall be presumed to arise out of and in the course of employment for purposes of awarding workers’ compensation benefits” if “the employee tested positive for or was diagnosed with COVID-19 within 14 days after a day that the employee performed labor” at the workplace.
It should be noted that the workers’ compensation law covers only “injuries or death incurred by employees,” WCL § 3(1). It remains an open question whether “gig workers” are employees, thus entitling them to workers’ compensation, or independent contractors who fall outside the statute’s purview. This question is part of a larger debate, outside the scope of this article, though we note the recent decision of the New York Court of Appeals to label Postmates couriers employees for the purposes of the state’s unemployment insurance law.
Injured employees seeking higher compensation awards than those typically available from a workers’ compensation board may be able to resort to court in two limited situations. First, WCL § 11 provides that “[I]f an employer fails to secure the payment of compensation for his or her injured employees and their dependents as provided in section fifty of this chapter, an injured employee . . . may . . . maintain an action in the courts for damages on account of such injury . . . .” This situation arises when the employer fails to purchase insurance with the state’s workers’ compensation fund or a private insurance company, § 50(1)-(2), and the uninsured employer lacks the ability to pay the compensation herself, § 50(3). Second, an employee is not barred from suing her employer if her employer engages in an intentional tort: “While an intentional tort may give rise to a cause of action outside the ambit of the Workers’ Compensation Law, the complaint must allege ‘an intentional or deliberate act by the employer directed at causing harm to this particular employee.’” Pereira v. St. Joseph’s Cemetery, 864 N.Y.S.2d 491, 492, 54 A.D.3d 835, 836 (2d Dep’t 2008) (citation omitted). However, the intentional-tort exception is difficult to prove and rarely succeeds in court.
Workers’ compensation has been criticized for providing inadequate compensation for workers with serious injuries and for their pain and suffering. See generally 1 Larson’s Workers’ Compensation Law § 1.03 (2019). However, the system allows many workers to quickly receive medical attention and some amount of lost wages—two benefits that should not be taken for granted given the lightning-quick ferocity with which COVID-19 struck the economy and healthcare infrastructure.
Reprinted with permission from the July 2, 2020 edition of the New York Law Journal. © 2019 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.