Employer Liability Pertaining to Coronavirus

Ford Richardson has received numerous inquiries pertaining to potential liability connected with COVID-19 (coronavirus) and offers this guidance.

Exclusivity Provision

To the extent that an employee is diagnosed, the employee’s remedy will likely be limited to workers’ compensation benefits under Virginia’s exclusivity provision set forth in Va. Code §65.2-307. This provision of the Virginia Workers’ Compensation Act (“the Act”) provides that “the rights and remedies herein granted to an employee when his employer and he have accepted the provisions of this title respectively to pay and accept compensation on account of injury or death by accident shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, at common law or otherwise, on account of such injury, loss of service, or death.”

Turning now to coverage under the Act. Employees may qualify for benefits under the Act if they can establish an injury by accident or disease that arises out of and in the course of the employment. The Virginia Workers’ Compensation Commission (“the Commission”) will most likely evaluate compensability of potential coronavirus claims under the disease provisions of the Act (§§65.2-400, -401, -402 and/or -402.1).

Va. Code §65.2-400 v. -401

Virginia Code §65.2-400 covers an “occupational disease” and Virginia Code §65.2-401 covers an “ordinary disease of life.” The proof elements for each are different as well as the burden of proof. The burden of proof for an “occupational disease” is a preponderance of the evidence, and the burden of proof for an “ordinary disease of life” is clear and convincing evidence. The Commission will examine diseases for which the general public is exposed outside of the employment under Virginia Code §65.2-401. Any claim brought by an employee will likely be evaluated under Virginia Code §65.2-401 (unless §65.2-402.1 or -402 is triggered as discussed below).

Could a claim for coronavirus be covered under Va. Code §65.2-401?

A claim for coronavirus could be covered under Va. Code §65.2-401.

An employee to prevail under Va. Code §65.2-401 would need to establish by clear and convincing evidence (and not a mere probability):

1. That the disease exists and arose out of and in the course of employment as provided in §65.2-400 with respect to occupational diseases and did not result from causes outside of the employment, and
2. That one of the following exists:

a. It follows as an incident of occupational disease as defined in this title; or

b. It is an infectious or contagious disease contracted in the course of one’s employment in a hospital or laboratory or nursing home as defined in §32.1-123, or while otherwise engaged in the direct delivery of health care, or in the course of employment as emergency rescue personnel and those volunteer emergency rescue personnel referred to in §65.2-101; or

c. It is characteristic of the employment and was caused by conditions peculiar to such employment.

The biggest hurdle for claimants that may pursue a claim for coronavirus will not be the actual diagnosis most likely, but instead establishing that the diagnosis was due to exposure while at work.

Could a claim for coronavirus be covered under Va. Code §65.2-402.1?

A claim for coronavirus could be covered under Va. Code §65.2-402.1 for first responders.

Virginia Code §65.2-402.1 provides for a rebuttable presumption for infectious diseases for certain categories of first responders when exposed “during the performance of job duties that places a covered employee at risk of infection.” This provision of the Act covers certain enumerated infectious diseases (hepatitis, meningococcal meningitis, tuberculosis, HIV) as well as a catch-all provision for “any health condition” that causes total or partial disability due to exposure to blood or bodily fluids.

It is unclear whether the Commission would include coronavirus under the catch-all provision of “any health condition” for those employees included in that statute as it has not yet been tested. Further, it is also unclear whether the definition of “body fluids” would be triggered under the definition under this statute, which was clearly written with attention to exposures for the enumerated diseases referenced above.

Could a claim for coronavirus be covered under Va. Code §65.2-402?

A claim for coronavirus could be covered under Va. Code §65.2-402 for first responders.

Virginia Code §65.2-402 provides for a rebuttable presumption, in part, for respiratory diseases for certain categories of responders resulting in total or partial disability. This statute also has not been tested as to whether the coronavirus would be covered as a respiratory disease.

The coronavirus is very likely to be considered a respiratory disease triggering application of this presumption based upon the medical literature.

Are employers potentially liable to third parties that contract coronavirus in their workplace?

An employer is likely to be found civilly liable only if a claim is brought by a stranger to the employment and it shown that through the negligence of the employer (or an agent) that this third party contracted the disease. Again, as noted above, claims by employees will be limited to a potential claim under the Act. The “reasonable person/business” standard will likely be analyzed to determine whether an employer is negligent. Moreover, any third party would need to prove by a preponderance of the evidence that they contracted coronavirus as a result of the negligence of the employer. Employers complying with the recommendations of the Center for Disease Control (“CDC”) with no known infected personnel are not likely to be found negligent. Moreover, causation would likely be difficult to prove in the absence of known employees in the workplace with a known diagnosis.

Some take-aways for employers:

1. As to potential coronavirus claims by employees that are not first responders, these will most likely be analyzed under Va. Code §65.2-401. To prevail, the employee would need to show (a) they have the disease; and (b) it was caused by workplace exposure. These will be very fact-specific inquiries.
2. As to potential coronavirus claims by employees that are first responders, these too will most likely be analyzed under Va. Code §65.2-401; however, the presumptions under Va. Code §65.2-402 and -402.1 may also be considered. These claims are more likely to result in award of compensability given the heightened-risk of this classification of employee as well as the presumptions afforded them. Moreover, claims for healthcare workers identified in Va. Code §65.2-401 (2) (b) are more likely to be covered.
3. Follow all recommendations by the CDC pertaining to commercial establishments and guidelines for employees as identified in this link. Employers are encouraged to send a writing to all employees advising of the adoption of all CDC guidelines. Advise employees in writing to not report to work if they exhibit symptoms and to seek immediate medical attention. Enact reasonable measures to limit unnecessary outside visitors to the workplace, consider installing hand sanitizer dispensers and signage requesting no entry for individuals that have symptoms or known exposure.

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Should you have any questions about the cases discussed here or other legal issues, please do not hesitate to contact the lawyers at Ford Richardson.

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