IS COVID-19 COVERED BY WORKERS’ COMPENSATION IN SC?

Is COVID-19 covered by workers’ compensation in SC?

It is or it isn’t, depending on who you ask. There is no question, however, that it should be covered for essential workers who are putting themselves at risk of exposure every day to keep our economy running, to feed and supply the public, to maintain order on the streets, and to provide medical care during a worldwide pandemic.

Below, I’ll discuss what SC law says about whether workers’ compensation covers exposure to the Coronavirus and why we need legislation passed quickly that will ensure coverage – not just for first responders, but for healthcare workers and every “essential worker” who is exposed to the virus as a result of their employment.

IS COVID-19 COVERED BY WORKERS’ COMPENSATION?

COVID-19 exposure is covered by workers’ compensation in SC if it is considered an occupational disease – a question that has not yet been determined in SC.

Although it seems clear that exposure to COVID-19 is an occupational disease, at least for first responders and healthcare workers, employers and their insurance companies will probably try to deny your claim for coverage – there is language in SC’s workers’ compensation laws that can be used to argue for or against coverage…

Is COVID-19 an “Occupational Disease?”

SC Code Section 42-11-10 defines “occupational disease” as:

…a disease arising out of and in the course of employment that is due to hazards in excess of those ordinarily incident to employment and is peculiar to the occupation in which the employee is engaged. A disease is considered an occupational disease only if caused by a hazard recognized as peculiar to a particular trade, process, occupation, or employment as a direct result of continuous exposure to the normal working conditions of that particular trade, process, occupation, or employment. In a claim for an occupational disease, the employee shall establish that the occupational disease arose directly and naturally from exposure in this State to the hazards peculiar to the particular employment by a preponderance of the evidence.

While most of the public can socially distance and protect themselves from exposure to the virus (not saying they are protecting themselves, but they have the option), workers in some occupations do not have a choice.

Exposure to COVID-19 arises out of and in the course of employment for:

• Police officers;
• Firefighters;
• Paramedics;
• Nurses;
• Doctors;
• Cleaning staff;
• Receptionists;
• Grocery store employees; and
• Mail delivery workers, whether they are at the US Postal Service, Fed Ex, or another delivery service, and whether they are on the road or in the warehouse.

If an essential worker during a pandemic has the choice of 1) exposing themselves to the virus daily or 2) losing their job, that exposure arises out of and in the course of their employment.

If the government closes down all non-essential businesses to prevent exposure to the virus, while you continue to work and put yourself in harm’s way because the government considers you an essential worker, that exposure arises out of and in the course of your employment.

Employers and Insurance Companies Will Try to Deny Your Claim

Despite this, when you file a workers’ compensation claim based on COVID-19 exposure, you can expect the insurance company to deny your claim. SC’s workers’ compensation laws also say:

(B) No disease shall be considered an occupational disease when it:

(1) does not result directly and naturally from exposure in this State to the hazards peculiar to the particular employment…

(3) is a contagious disease resulting from exposure to fellow employees or from a hazard to which the workman would have been equally exposed outside of his employment;

(4) is one of the ordinary diseases of life to which the general public is equally exposed, unless such disease follows as a complication and a natural incident of an occupational disease or unless there is continuous exposure peculiar to the occupation itself which makes such disease a hazard inherent in such occupation…

Insurance companies will argue that exposure to COVID-19 is not a hazard “peculiar to the particular employment.” Except, if you are a first responder, nurse, doctor, or grocery store cashier during a COVID-19 outbreak, your occupation has been designated as “essential.” Therefore, exposure to the virus is “peculiar” to your “particular employment.”

They will argue that you could have contracted the disease from exposure to fellow employees or others outside of your employment. That’s true, and you may be forced to prove that the exposure occurred at your employment. But it is also true that you would not have been equally exposed outside of your employment where you would have had the opportunity to socially distance and protect yourself from the general public.

They will argue that COVID-19 is an “ordinary disease of life to which the general public is equally exposed.” Except, COVID-19 is anything but an ordinary disease of life – it is a novel coronavirus that has never been seen before.

If you are forced to have daily, continuous contact with the public, whether that is in a grocery store or an ICU unit at the hospital, that is a “continuous exposure peculiar to the occupation itself which makes such disease a hazard inherent in such occupation,” and the general public is not equally exposed.

SHOULD I FILE A WORKERS’ COMPENSATION CLAIM FOR COVID-19 EXPOSURE IN SC?

Workers’ compensation should compensate all essential workers for losses attributed to a COVID-19 infection on the job, including:

• The cost of medical care, including hospitalization, intubation on a ventilator, and ongoing care if needed;
• Weekly compensation of two-thirds of your average weekly wages; and
• Death benefits if you die as a result of COVID-19 exposure on your job.

If you are an essential worker who is diagnosed with COVID-19, you should:

• Immediately report the exposure or diagnosis to your employer;
• File a workers’ compensation claim for benefits;
• Contact your SC workers’ compensation attorney for help filing your claim or appealing a denial of your claim; and
• Document your working conditions to show that 1) the exposure more likely than not happened at your place of employment and 2) your working conditions made it more likely that you would be infected as opposed to the general public.

IS COVID-19 COVERED BY WORKERS’ COMPENSATION FOR FIRST RESPONDERS AND HEALTHCARE WORKERS?

Looking around the internet, it seems workers’ compensation attorneys who work for the people are predicting that COVID-19 exposure will be covered for first responders and healthcare workers, while workers’ compensation attorneys who work for insurance companies are predicting that it is not covered (no surprise there).

If you are a healthcare worker, first responder, or anyone designated as an essential worker who is forced to have daily contact with the public, you should be covered by workers’ compensation. You also should get a medal, a parade, a hug, and extra hazard pay…

We Need Legislation that Ensures Essential Workers are Covered by Workers’ Compensation

Because insurance companies will attempt to deny claims based on COVID-19 (and some industry-friendly commissioners may agree with them), we need legislation passed asap to ensure that any person designated as an essential worker is covered by workers’ compensation if they contract COVID-19 on the job.

Legislation is reportedly in the works that will ensure first responders are covered by workers’ compensation. In the reports, however, I only see language about first responders – police, firemen, and paramedics.

That’s not enough.

Any legislation needs to include all essential workers – a grocery store clerk or receptionist who is forced to work and continuously expose themselves to the public is no less worthy of coverage than police officers who are also forced to continuously expose themselves to the public.

Legislation needs to be passed to ensure there is no question that exposure to the novel coronavirus is covered by workers’ compensation in SC, and it needs to apply to all essential workers, including healthcare workers and first responders.

GOT AXELROD?

If you have been injured at work and believe you are entitled to workers’ compensation benefits, your SC workers’ compensation attorney can help you to file your claim, negotiate with the insurance company, present your medical evidence, and file any necessary appeals.

Call now and schedule a free consultation with a Myrtle Beach worker’s compensation lawyer on the Axelrod team. Call us at 843-353-3449 or fill out our contact form today.