Coronavirus Workers Compensation in Construction

In this time of turmoil due to the coronavirus pandemic, many construction businesses and employees alike are worried about protecting themselves. Up until now, the construction industry has been relatively spared from the economic impact, but this may just prove to be the calm before the storm.

Given the potential impact on the industry, many have decided that the risk of showing up to work outweighs the potential financial strains that may lie ahead. In light of this, there’s one question on a lot of construction businesses’ minds: Is contracting or being exposed to coronavirus covered under workers’ compensation insurance?

Get lien stories and legal alerts
delivered to your inbox

Workers’ compensation insurance basics

Workers’ compensation is an insurance policy that provides benefits to employees who are injured or become ill at work. If the injury or illness is covered under the policy, workers’ compensation benefits include medical expenses, lost wages, and any rehabilitation costs. It also covers death benefits for the family members of those that are killed on the job. So what about coronavirus-related claims? Can construction workers who get coronavirus on the job make a workers’ comp claim?

Coronavirus Work Stoppage Tracking

Has your project stopped due to Coronavirus?

  

Coronavirus & worker’s compensation insurance

Since a claim for novel coronavirus is an illness, as opposed to an injury, coverage will be determined by state law. Illnesses are typically difficult to prove, especially when the illness is prevalent in the public community, as coronavirus is. To be covered under workers’ comp, the illness or disease must be deemed an “occupational” disease/illness.

How that’s defined depends on the state your working in; here are a few examples:

  • Arizonadue to causes and conditions characteristic of and peculiar to a particular trade, occupation, process, or employment, and not the ordinary diseases to which the general public is exposedARS §23-901(13)(c)
  • Florida: a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment, and to exclude all ordinary diseases of life to which the general public is exposed, unless the incidence of the disease is substantially higher in the particular trade, occupation, process, or employment than for the general public- Fla. Stat. §440.151(2)
  • Texas: disease arising out of and in the course of employment that causes damage or harm to the physical structure of the body, including a repetitive trauma injury. The term includes a disease of infection that naturally results from a work-related disease. The term does not include an ordinary disease of life to which the general public is exposed outside of employment- Tex. Work. Comp. §401.011. 

Notice a pattern here? Although there are some variations state-to-state, the general rule is this. Illness will be covered by workers’ compensation if it is (a) occupational (work-related), and (b) “peculiar” to the job or work environment. Let’s break down each of these individually and see how they apply to construction workers affected by the COVID-19 outbreak.

Disease must be “occupational”

Occupational means that the illness or disease arose out of, and was contracted within, the course and scope of the employment. What this means is that the disease was contracted by an employee during any kind of activity that benefits the business or affairs of the employer. So an illness contracted while commuting to or from work, during an offsite lunch break, etc., won’t be covered.

This seemingly simple concept is quite difficult to prove. The insurance carrier will likely require supporting evidence to make a determination of the claim. Establishing the specific point or event that led to the contraction of the virus requires an extraordinary amount of detailed, and quantifiable documentation.

For COVID-19, proving where an employee contracted the virus can be particularly difficult, since the incubation period can be anywhere between 2 and 14 days (the timeframe from contracting to exhibiting symptoms). Furthermore, since the virus is so widespread, proving that it wasn’t contracted in the employee’s daily life would also be quite challenging.

Disease must be “peculiar to the work”

The second element is a bit more complicated. An illness or disease must also be “peculiar” to the work. This means that, due to the type of work or working conditions, there’s an increased risk of exposure to the illness — more so than in the general public. This element severely limits the types of professions that can claim illnesses under worker’s comp.

Historically, this is has been fairly limited to health care workers and first responders, and that trend appears to be remerging. Take Washington state for example, which has already begun to take steps to expand its worker’s compensation laws. Recently, the state issued some guidelines declaring that:

Under certain circumstances, claims from health care providers and first responders involving COVID-19 may be allowed. Other claims that meet certain criteria for exposure will be considered on a case-by-case basis.

In most cases, exposure and/or contraction of COVID-19 is not considered to be an allowable, work-related condition.

Sick construction workers will have a difficult time proving that the job site creates a higher or particular risk of coronavirus compared to the public at large.

Coronavirus likely isn’t covered under workers’ compensation

As the coronavirus continues to spread, more and more claims will be made under workers’ compensation. Although plenty of good arguments can be made to support such claims from the construction industry, it’s doubtful. Insurance carriers will obviously fight these claims as much as possible, and approving such a claim would be controversial at best. Why? Because this could set a dangerous precedent, opening the floodgates to all sorts of claims from a number of different industries and professions.

Who knows, as time passes, whether things will change. However, to recap, here are three questions to ask when contemplating a workers’ compensation claim for coronavirus:

  • Is there an increased risk or greater likelihood of contracting coronavirus due to the claimant’s role or job site conditions?
  • If not for the job, would the claimant have been exposed to or contracted the virus?
  • Can the claimant identify a specific source or event during the performance of their employment that resulted in the exposure or contracting of the virus?

Additional coronavirus & construction resources