On March 11, 2020, COVID-19, also known as the Coronavirus, was declared a global pandemic by the World Health Organization. As a result, a question that inevitably arises is whether an employee’s contraction of this virus while in the course and scope of employment, is compensable under the Illinois Workers’ Compensation Act or Illinois Occupational Disease Act.
The Illinois Workers’ Compensation Act is silent with regards to whether infectious diseases are compensable. However, under the Illinois Occupational Disease Act, (the “Act”), an “Occupational Disease” is defined as a disease arising out of and in the course of the employment or which has become aggravated and rendered disabling as a result of the exposure of the employment. 820 ILCS 310/1(d). Specifically, the disease shall arise out of a risk peculiar to or increased by the employment and not common to the general public. Id. Furthermore, an employee is deemed exposed to the hazards of an occupational disease when he or she is employed in an occupation or process in which the disease exists. Id. The disease must have its origin or aggravation in a risk connected to the employment and must naturally result from that risk. Id. However, the Act is clear that an employee shall be conclusively deemed to have been exposed to the hazards of an occupational disease when, for any length of time however short, he or she is employed in an occupation or process in which the hazard of the disease exists. 820 ILCS 310/1(d).
To prove that the disease is causally related to the workplace, an employee must show that the workplace caused the occupational disease and that the disease caused a condition of ill-being or disablement. 820 ILCS 310/7. To prove that an exposure at the workplace caused the disease, the employee would need a medical opinion causally relating the exposure at the workplace to the disease at issue. Id. The fact that the general public is exposed to a certain disease lessens the chances that a person’s employment causes or aggravates a disease. Downs v. Industrial Com’n, 143 Ill.App.3d 383, 389 (5th Dist. 1986). However, there is no statutory language requiring proof of a direct causal connection, and the connection could be based on a medical opinion that an accident could have or might have caused an injury. Consolidation Coal Co. v. Industrial Comm'n, 265 Ill.App.3d 830, 839.
In Omron Electronics v. Illinois Workers’ Compensation Commission, the Court affirmed the decision of the circuit court as well as the Commission, that the petitioner contracted meningitis while on a work-related trip to Brazil. Omron Electronics v. Illinois Workers’ Compensation Commission, 2014 IL App (1st); Id. 45. According to testimony from various doctors, meningitides can be contracted by contact with respiratory droplets. Id. at 41. While in Brazil, the petitioner interviewed multiple candidates for a general manager position and traveled around the city of Sao Paolo by taxi. Id. In sum, his extensive travels throughout the city and meetings with various of people could have exposed him to meningitides. Although there were conflicting medical reports, the Commission found the testimony of Petitioner’s treating physicians to be more persuasive.
In Sperling v. Industrial Com’n, the Illinois Supreme Court affirmed the decision of the Commission, agreeing that the petitioner failed to show a causal connection between her employment and her hepatitis B. Sperling v. Industrial Com’n, 129 Ill.2d 416, 423 (1989). That case involved an operating room nurse who contracted hepatitis B. Id. at 418. Both the arbitrator and the Commission held that the petitioner failed to establish the requisite causal connection between her employment and her contraction of hepatitis B. Id. The appellate court reversed. Id. The petitioner testified that she pricked herself with a sharp operating instrument that had been exposed to patients’ blood. Id. at 419. Her supervisor affirmed. Id. The appellate court held that direct causation was not required, but the Illinois Supreme Court found that the Commission’s decision did not go against the manifest weight of the evidence and disagreed that it should have been overturned. Id. at 422. The Court opined that Petitioner’s failure to offer evidence that she had direct contact with a carrier of hepatitis B during her course of employment damaged her argument.
As of March 11, 2020, thousands of people across the world are confirmed to have contracted COVID-19 with thousands more having died as a result of their symptoms. The virus appears to be spreading fast with no indication of slowing, and there is no reason to believe that a vaccine could become available anytime soon. As a result, employers have been asking: how will the Illinois Workers’ Compensation Commission view cases involving employees who have filed claims alleging they contracted the virus while at the workplace? Our position is that regardless of the severity of the virus, it should be handled no differently than the contracting of any other disease while in the workplace.
What differentiates COVID-19 from other diseases is how contagious it appears to be and how fast it has spread throughout the world. The wide variety of cases indicate that ordinary persons are contracting the virus within and outside of the workplace. Excluding the medical field and professions requiring international travel, we recommend the denial of claims involving the contracting of COVID-19 in the workplace. As widespread as the virus currently is, a person in the workplace is at no greater risk than the general public who have been exposed at a variety of locations. An infected employee could argue that he or she was at greater risk of exposure by being present at work, but it would be difficult to prove that the risk was peculiar to that workplace that differentiates it from the general public. The disease “need not to have been foreseen or expected but after its contraction it must appear to have had its origin or aggravation in a risk connected with the employment and to have flowed from that source as a rational consequence.” See Sperling, at 421. A petitioner would have difficulty showing that the risk was causally related to the employment itself and to have flowed from that source.
It could be argued that employees who are required to travel would be at greater risk of exposure than the general public, such as the petitioner in Omron Electronics. However, the petitioner in that case traveled outside of the country for his work. He was at greater risk than the general public in the United States because of his exposure to a disease more prevalent in Brazil. Our position is that employees who travel within the United States as part of their work are at no greater risk than the general public, especially with how prevalent the spread of COVID-19 is at this point. If an employee is required to travel to a country with greater exposure, such as Italy or China, that employee would have a stronger chance of showing that he or she was at a greater risk than the general population here in the United States.
As severe as the virus has been, medical professionals and emergency responders are at a greater risk of exposure than the general public as they deal with the infected patients. Unlike those of the general population, medical professionals and emergency responders deal specifically with infection patients. As stated above, a petitioner could likely show that the disease risk is causally related to employment in a medical facility and to flow from that facility as a result of all the infected patients. Thus, they would have a greater chance of showing that their workplace placed them at a greater risk than the general population of contracting COVID-19.
In summary, as general practice, we would recommend denial of claims relating to contraction of COVID-19, with the exception of cases involving medical personnel in the healthcare industry, which would include emergency responders, and employees who are required to travel internationally to nations known to be dealing with the virus.
The situation involving COVID-19 continues to remain in-flux. As government and medical professionals work on protecting the public, it is important that employers respond with caution. If an employee is required to work with infected persons, we would recommend that the employee be kept away from the workplace if he or she shows any signs of sickness. Regardless of an employee’s job duties, we would recommend that any employee that is sick be required to refrain from returning to work until a diagnosis is determined. Furthermore, if an employee has traveled outside of the country and shows sign of sickness, we would recommend that they be required to refrain from returning to work until a diagnosis is determined. Although COVID-19 is a virus and would likely be treated by the courts like that of other viruses, its rapid spread places a greater number of people at risk of contracting the disease.