The issue of the introduction of the Coronavirus entering the WC arena is a quickly developing topic, especially so in the Healthcare Industry.

There are no cases as of yet on the Virus itself, but the attached cases serve as useful guides as to where the WCAB may go.

Essentially, Valley Fever/Coccidiomycosis was found to exist on an industrial basis in two Panel Decisions from the WCAB (Cruz and Abernathy).

The third case, Kane, Canelo and Temple (INA) vs. WCAB (Baker) is a DCA decision from 1976 confirmed a WCAB decision finding that a legal secretary’s death from pneumonia secondary to influenza was compensable where the evidence showed that there were wide variations of temperature in the employee’s work environment and she missed many days of work because of colds and that she was more susceptible to colds than other employees because of myasthenia gravis, having a cold on the last day of work and the cold having lowered her resistance to influenza.

OSHA has deemed the 2019 coronavirus a recordable illness when infection occurs on the job.

An Employer may provide general information to employees to let them know that someone is infected with the Virus to allow employees to monitor themselves. HIPPA applies to the identity of the Infected employee.

The following excerpt from an article co-authored by one of my colleagues at Bradford & Barthel, John Kamin has some additional helpful information relative to healthcare workers:

“This gives rise to the question about whether health care worker cases are deemed compensable. For these cases, it’s important to note that health care workers already follow very stringent protocol to avoid spreading disease.

Therefore, the factual investigation should focus on whether there were protocols to avoid infection and whether there were lapses. If there are no lapses in protocols to avoid infection, the defense against those claims becomes stronger.

The California Labor Code, with one exception, does not provide any statutory presumptions of compensability to health care workers regardless of the type of injury.

The one exception is found Labor Code Section 3208.05, which provides a presumption of injury for health care workers due to preventative care. This presumption of compensability may be triggered if a health care worker suffers an injury while undergoing care to prevent the development or manifestation of any blood-borne disease, illness, syndrome or condition recognized as occupationally incurred by Cal-OSHA, the federal Centers for Disease Control or other appropriate governmental entities.

This presumption specifically includes preventative care for, among other things, hepatitis and HIV. Arguably it would also apply to injuries that arise from preventative care for widespread contagions during an epidemic.

With regard to cheek swabbing in order to test for infection of coronavirus, we do not believe that this in and of itself would trigger obligations under the workers’ compensation policy absent a secondary injury or infection that arises as a result of the cheek swabbing itself.”

For quarantined workers the following recommendations are made:

“For those who are exposed at work and wind up being quarantined, the question arises about whether the quarantine itself gives rise to workers’ compensation benefits, such as temporary disability benefits. Please recall that just because someone is quarantined, that does not mean he is infected.

There does not appear to be case law directly on point with quarantine situations being used as a preventative tool. However, that may support employers’ position that a quarantine does not warrant TD benefits.

The primary focus in this inquiry is whether there is evidence of an injury, something requiring more than just first aid. If quarantine is done solely as a preventative measure and there are no active signs of infection at the outset, the quarantine is merely a public health action and as such would not rise to the level of injury, absent something more.

In that situation, there would be minimal likelihood of prevailing on a claim of entitlement to temporary disability benefits.

Please note that if the employees are members of a union, we recommend double-checking whether the union contract speaks to such situations entitling them to wage replacement.”


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