Contracting COVID-19 at work is unlikely to be a compensable occupational disease under the Nebraska Workers’ Compensation Act. Although a limited exception could be possible for those infectious disease medical professionals specifically treating COVID-19 patients, those employees would still have to prove by preponderance of the evidence that the exposure occurred at work. It is more likely than not that COVID-19 would be considered an ordinary disease of life and, therefore, not compensable under Nebraska law.

 

In Nebraska, ‘occupational disease’ is defined in Neb. Rev. Stat. 48-151(3) as “only a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment and excludes all ordinary diseases of life to which the general public is exposed.” To further elaborate on this, an occupational disease must be a natural incident of a particular occupation and must attach to that occupation a hazard which distinguishes it from the usual run of occupation and which is in excess of that attending employment in general…The statue does not require that the disease be one which originates exclusively from the employment. The statute requires that the conditions of the employment must result in a hazard which distinguishes it in character from employment generally. Ritter v. Hawkeye-Security Insurance Co., 178 Neb. 792,795, 135 N.W.2d 470, 472 (1965).

 

The Nebraska Supreme Court has not defined “ordinary diseases of life” in terms of 48-151(3). It, however, has not been asked to address whether a virus is a compensable occupational disease. To date, the Nebraska Supreme Court has only addressed compensability of exposure to latex (Ludwick v. TriWest Healthcare Alliance, 267 Neb. 887, 678 N.W.2d 517 (2004), silica (Hauff v. Kimball, 163 Neb. 55, 77 N.W.2d 683 (1956), asbestos (Osteen v. A.C. and S., Inc., 209 Neb. 282, 307 N.W.2d 514 (1981), wheat dust (Riggs v. Gooch Milling & Elevator Co., 173 Neb. 70, 112 N.W.2d 531 (1961), detergents (Ritter v. Hawkeye–Security Ins. Co., 178 Neb. 792, 135 N.W.2d 470 (1965), and loud noises (Risor v. Nebraska Boiler, 277 Neb. 679765 N.W.2d 170, (2009). The Nebraska Supreme Court generally looks to the hazards of the employee’s profession to determine if the alleged exposure is particular to the employee’s particular trade occupation, process or employment.

 

The most instructive analysis provided by the Nebraska Supreme Court on how it might evaluate a virus like COVID-19 can be found in Risor v. Nebraska Boiler, 277 Neb 679, 765 N.W.2d 170 (2009). In Risor, the employee claimed exposure to loud noises as a boiler manufacturer was a compensable occupational disease. The Nebraska Supreme Court disagreed. It reasoned that exposure to loud noises was too broad to make it peculiar to employee’s employment as a boiler manufacturer specifically stating that other professions such as firefighters, police officers and others would be exposed to such a hazard.

 

An analysis similar to Risor is expected if the Nebraska Supreme Court would evaluate the compensability of COVID-19. Risor suggests that exposure to COVID-19, even by first responders and medical professionals generally, would be too broad to satisfy the requirement that the exposure be peculiar the employee’s particular trade occupation, process or employment.

 

It is possible that the Nebraska Supreme Court may recognize a limited exception regarding compensability exposure to COVID-19 by infectious disease medical professionals specifically required to treat patients with COVID-19. Even then, the employee would have to establish by preponderance of the evidence that the exposure occurred while the employee was engaged in employment related duties for the COVID-19 exposure to be compensable under this possible exception. It is unlikely that COVID-19 exposure at work by any other employee in any other profession would be a compensable occupational disease under the Nebraska Workers’ Compensation Act.