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Workers’ Compensations and Compensability of the COVID-19 Virus in Georgia

Written by: Meredith Knight, Esq.

Over the past week, multiple questions have arisen regarding whether contracting COVID-19 is a compensable workers’ compensation event.  The answer will almost always be no.  In a few very fact-intensive cases, the answer may be yes. This article discusses the compensability of viruses in Georgia, as well as the unique position of healthcare workers, food workers, and business travel.  In addition, light duty work with business closures, the importance of written employer rules regarding illnesses, and avoiding discrimination statute pitfalls will be discussed

First and foremost, a “virus” is a disease.  O.C.G.A. 34-9-1(4) states definitively:

“Injury” or “personal injury” shall not, except as provided in this chapter,  include a disease in any form except where it results naturally and unavoidably from [an] accident.

With no allegation of a specific accident, a virus may only be compensable, if at all, under the Occupational Disease section of the Georgia Workers’ Compensation Act at O.C.G.A. § 34-9-280 et. seq. In order to qualify for Workers’ Compensation benefits as an occupational disease, each prong of a five (5) part test must be satisfied.

An injured worker claiming benefits for an occupational disease must prove the following: (A) a direct causal connection between the conditions under which the work is performed and the disease; (B) that the disease followed as a natural incident of exposure by reason of the employment; (C) that the disease is not of a character to which the employee may have substantial exposure outside of employment; (D) that the disease is not an ordinary disease of life to which the general public is exposed; (E) that the disease must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence.   COVID-19 is  an ordinary disease to which the general public is exposed; therefore, it cannot meet the criteria for occupational disease.   As a result, the only way in which contracting COVID-19 could be compensable is if it can be shown to have resulted naturally and unavoidably from an accident arising out of and in the course of employment.

For industries in which an employee’s specific job demands direct contact with infected people, such as healthcare workers and first responders, it is possible that COVID-19 could be a compensable workers’ compensation event, but a specific incident is required, such as an accidental needle stick after the needle has been used on an infected person or some unexpected contact with bodily fluids from an infected person.  General occupation exposure is not enough. Even in those cases where an accident has been proved,  it is necessary for the claimant to prove that contracting the disease was the natural and unavoidable result of the accident..

In industries involving constant face to face interactions, such as food service, retail, or transportation, the risk of contracting and disseminating COVID-19 is very real. The same is true for business travelers. In light of the risks these workers face, it must be remembered that COVID-19 is a disease to which the general public is exposed, and to which the claimant may have had substantial exposure outside of employment. COVID-19 is not and cannot be an occupational disease.  Unlike Methicillin Resistant Staphylococcus Aureus, (MRSA), COVID-19 never was a nosocomial infection. MRSA began as an infection that was hospital based and therefore solely hospital contracted.  At that point in time, health care workers with MRSA passed the five-prong test above, and MRSA cases were compensable as occupational diseases. As MRSA evolved, it became something to which the general population was exposed, and it was no longer compensable as an occupational disease.    COVID-19 has been a community based infection from the beginning.

A further issue arises because some employers, who may have claimants working light duty or who are receiving temporary partial disability benefits (TPD), are temporarily closing their doors as a result of COVID-19.  If a claimant who is working light duty stops working for reasons unrelated to his injury (after having worked for at least 15 scheduled work days), he is not entitled to reinstatement of temporary total disability benefits (TTD) without proof that he is unable to obtain other suitable employment because of the injury. The business decision to close during a pandemic has nothing to do with the claimant’s work injury or restrictions.  As a result, as long as that claimant has worked light duty for 15 days he is not entitled to automatic recommencement of indemnity benefits.

The situation is different for claimants receiving TPD benefits under O.C.G.A. § 34-9-262.  The claimant will continue to receive TPD until the Employer/Insurer can prove that he would no longer have a reduction in earnings due to the injury.  See White v. Nantucket Industries, 214 Ga. App. 544 (1994). Both scenarios above show this pandemic’s costs to the injured worker, employers, insurers and to the public.

In the situation where an employee is exhibiting symptoms of the cold or flu, can the employer simply send the employee home? Jacqueline Voronov in Hall Booth Smith’s  employment group has helped answer these questions. Together with Jeffrey Daitz, Ms. Voronov has been posting constant updates about the federal discrimination laws and COVID-19 on LinkedIn, including an excellent article outlining each of the employment discrimination statutes, and how COVID-19 may or may not apply to each scenario. Before taking action towards a sick employee, please review that article for a step-by-step course on the FMLA, the ADA, and other potential discrimination issues. Employers must make specific rules and policies known to their employees, and hopefully, those concerning illness were in place before this pandemic.

Notwithstanding all of the above, the uncertainty of pandemics often lead lawmakers to react by making temporary laws, mandates, or guidelines.  Some states, such as Washington, are going as far as to make specific provisions right now. The Georgia legislature has not done so to date but if that changes we will advise you immediately.

On a final note, this article is not meant to discount the danger. Please continue to be wary of the very real danger of this pandemic. COVID-19 is highly contagious. Some infected people show little or no symptoms. Many people are panicked. Very soon, we all may know someone who has tested positive. This article merely seeks to explain the outbreak in terms of the provisions of the Georgia Workers’ Compensation act, and the interplay between the multiple federal laws.  Stay healthy, stay safe, and please call us with any questions.