With the current concerns regarding Coronavirus Disease 2019 (COVID-19), I thought you might appreciate a general opinion on whether an employee could bring a valid workers’ compensation claim due to COVID-19 exposure. My opinion is that it will be very difficult for an employee to bring such a claim and the default position should be denial.
In order for contraction of COVID-19 to be deemed a compensable work injury in Georgia, it must an “occupational disease” pursuant to O.C.G.A. §§34-9-280, et seq. An occupational disease is one which arises out of and in the course of a particular occupation. An occupational disease is not typically a cold or the flu as these conditions are not associated with a particular occupation. Examples of occupational diseases include, but are not limited to, asbestosis, silicosis, and mesothelioma.
There are 5 elements which must be proven to recover for an occupational disease:
- A direct causal connection between the conditions under which the work is performed and the disease.
- That the disease followed as a natural incident of exposure by reason of the employment.
- That the disease is not of a character to which the employee may have had substantial exposure outside of the employment.
- That the disease is not an ordinary disease of life to which the general public is exposed.
- That the disease must appear to have had its origin in a risk connected with the employment and to have flowed form that source as a natural consequence.
Also, O.C.G.A. §34-9-281(b)(1) provides additional prerequisites to employer liability for an occupational disease - An employer is liable for an occupational disease only where 1) the disease arose out of and in the course of the employment in which the employee was engaged; 2) was contracted while the employee was so engaged, and 3) resulted from a hazard characteristic of the employment in excess of the hazards of such disease attending employment in general.
In my opinion, it will be very difficult for any claimant to make out a claim for contraction of COVID-19, absent some unique circumstances. An example might be a medical provider or first responder who treats a patient known to have the virus. Otherwise, it will be almost impossible for an employee to prove where COVID-19 was contracted. More importantly, given the rapid expansion of the virus in the general public, it will almost certainly be considered an ordinary disease of life to which the general public is exposed.