COVID-19 is an Occupational Disease for Some Occupations
Covid-19 is an occupational disease for some occupations. For some other occupations it is not an allowable claim. The usual difficult proof requirements of occupational disease law apply to all workers, including those with Covid-19.
Said another way: You contract Covid-19 on the job, and you may or may not have a valid L&I claim.
Covid-19 L&I Claims Must be Proven as an Occupational Disease to be Allowed.
An occupational disease is not an injury, it is a disease. Occupational disease proof requirements are required to be successful.
Proof of an Occupational Disease.
- A physician must present an opinion that work conditions, on a more probable-than-not basis (a greater than 50% chance), are a cause of the disease or have aggravated or “lit up” a preexisting condition; AND
- Objective medical findings support the diagnosis; AND
- The disease must arise “naturally and proximately” out of employment.
- Naturally — To arise “naturally” out of employment, a disease must be regarded as a natural consequence of distinctive conditions of the work process, including one or more of the following:
- The disease is caused by distinctive conditions of the worker’s employment. The disease or disease-based disability does not arise out of employment if it is caused by conditions of everyday life or all employments in general; OR
- The worker’s occupation exposed the worker to the likelihood of contracting the disease or the disease-based disability; OR
- The disease is caused by continuous and specific activity required to perform the job.
- Proximately — To arise “proximately” out of employment, “the cause must be proximate in the sense that there existed no intervening independent and sufficient cause for the disease, so that the disease would not have been contracted but for the [distinctive] condition existing in the…employment.”
Date of Manifestation:
The date of manifestation of a Covid-19 claim is whichever occurs first of the following:
- The first missed work day due to symptoms;
- The day the worker was quarantined by a medical provider or public health official;
- The day the worker received a positive test result confirming contraction of the infectious or contagious disease.
Frontline Workers in Washington State have a Helpful Presumption in Their Favor (HELSA).
Frontline workers who have L&I coverage have a legal rebuttable presumption in their favor. This presumption declares that COVID-19 is an occupational disease for frontline workers. This is very helpful for frontline workers.
This presumption is helpful because it assists in the proof of a claim. Under the new law the frontline worker need only show they contracted COVID-19, and then this medical condition will be presumed to be related to their job. This save money and time, and will help frontline workers with their claims.
Who Is a Frontline Worker?
Frontline workers are healthcare workers. First responders, food and farm workers, workers at facilities that treat Covid patients, transportation drivers, childcare workers, retail clerks, hotel and motel workers, restaurant workers, home care aids, correction officers, educators and staff, and others are frontline workers and can be helped by the presumption. You can prove you are a frontline worker if your facts are right.
When Does This New Law Apply?
This presumption is limited in time to a public health emergency declared by the United States president or Washington State Governor. This presumption started February 29, 2021 and will be in effect until the health emergency is over. The Division of Occupational Health and Safety will have up to date information regarding the duration of the emergency. DOSH can be reached at 800-423-7233
What is the HELSA Bill?
HELSA stands for Health Emergency Labor Standards Act. L&I says the HELSA bill applies to frontline workers when both the exposure occurs and the claim is filed on or after May 11, 2021, when the new laws took effect.
Will COVID-19 be Allowed as a Work-Related Condition?
Yes it is presumed to be related to work for frontline workers while the health emergency is in effect. Under certain circumstances it can be allowed if proven for non frontline workers. If Covid-19 arises naturally and proximately out of their employment their claims should be allowed. These COVID claims from occupations that meet certain criteria for exposure, will be considered on a case-by-case basis. See: Covid-19 is an Occupational Disease for some Occupations, (above).
Where an employer requires working in close proximity, there arises an interesting question whether this unsafe work condition is actually a distinctive condition of employment.
The line between occupational disease allowance and denial is not bright. It may be that if you are required to work with the public your claim will be looked upon more favorably than if you work in a closed office or from home. Meanwhile, if you contract COVID-19 on the job then file your claim.
What is an Unsafe Working Condition?
Unsafe working conditions are things that are hazardous to workers. It matters not in L&I claims. L&I claims are no fault. You don’t have to show a unsafe working condition to prove an L&I claim.
How do I Prove I have Covid-19?
You will be required to provide proof to the Washington State Department of Labor & Industries (L&I) or your self-insured employer that you contracted the disease. Generally, this includes a positive test result from a medical provider.
When Will a COVID-19 Claim Likely be Denied?
In many cases, exposure and/or contraction of COVID-19 is not considered to be an allowable, work-related condition.
When COVID-19 is contracted outside the workplace, or when it is incidental to the workplace or common to all employment (such as an office worker who contracts the condition from a fellow employee), a claim for exposure to and contraction of the disease will likely be denied.
See the news release from Governor Jay Inslee from March 5, 2020: Workers’ Compensation Coverage and COVID-19: Department Policy
Can I sue my living facility or other organization if that is where I contract COVID -19?
Yes. Get legal advice about how to proceed.
L&I needs to be notified. File a death benefits claim with L&I. These are good benefits. See Pensions for details. Contact an L&I attorney. Don’t wait – there is a time deadline.
Coronavirus / Covid-19 on the job cases are occupational disease L&I claims. Lawyers who do L&I claims can help you prove an occupational disease claim.
What’s Important in these Cases
Favorable medical opinion on a more probable than not basis is always required. Being a frontline worker and having a presumption is great. Good facts showing probable exposure within two weeks of symptoms is helpful. Proximity to persons makes a difference. Showing that work exposure to Covid is more likely than non work exposure will be necessary.