Are contagious diseases, such as coronavirus, contracted in the course of employment generally compensable under Missouri workers’ compensation law? If not, are there specific circumstances that would require compensability under Missouri law?
The compensability of a contagious disease is governed in Missouri by statutes. The Worker’s Compensation Laws contained in the statutes define occupational disease as “an identifiable disease arising with or without human fault out of and in the course of employment.” Mo. Ann. Stat. § 287.067.1. Further, the statute states, “[a]ny employee who is exposed to and contracts any contagious or communicable disease arising out of and in the course of his or her employment shall be eligible for benefits under this chapter as an occupation disease.” Id. at 6.
However, the statute specifically denotes that “ordinary diseases of life to which the general public is exposed” are not compensable. Id. at 2. The only exception for ordinary diseases of life occurs when the “diseases follow as an incident of an occupational disease,” no matter how short exposure to the disease may be. Id; Mo. Ann. § 287.063.2. Thus, for a contagious disease to which the public is generally exposed, the claimant must be able to demonstrate that their “occupational exposure was the prevailing factor” for causation. Mo. Ann. § 287.067.2.
For an employer to be held liable for an employee’s contraction of a contagious disease, the statute lays out to relevant factors: (1) the disease must “have had its origin in a risk connected with the employment” and (2) “have flowed from that source as a rational consequence.” Mo. Ann. Stat. § 287.067.1. Missouri courts treat these factors as two-part test to determine compensation eligibility. Simmons v. Bob Mears Wholesale Florist, 167 S.W.3d, 222, 225 (Mo. App. 2005). The courts have consistently applied the second factor as inclusive of a “recognizable link between the disease and some distinctive feature of the employee’s job which is common to all jobs of that sort.” Kelly v. Bata & Stude Contr. Co., 1 S.W.3d 43, 48-9 (Mo. App. 1999).
Further, the employee’s exposure through the course of their employment must be the prevailing factor for causing contraction of the disease. Mo. Ann. Stat. § 287.067.2 (2014). “‘[P]revailing factor’ is defined to be the primary factor” of the occupational disease, which may occur in conjunction with secondary factors. Id.
In proving causation, the claimant bears the burden of proof to show a “recognizable link between the disease and some distinctive feature of the job which is common to all jobs of that sort.” Vickers v. Missouri Department of Public Safety, 283 S.W.3d 287, 291 (Mo. App. 2009) (citing Jacobs v. City of Jefferson, 991 S.W.2d 693, 696 (Mo. App. 1999); Kent v. Goodyear Tire & Rubber Co., 147 S.W.3d 865, 867 (Mo. App. 2004)).
Missouri treats contagious diseases as potentially compensable if the employee can establish (1) a that their occupation created a greater risk of contracting the disease than the general public and (2) a link between the disease and a unique feature of their employment shared by all employed in that line of work.
This standard sets a difficult burden of proof for claimants when dealing with ordinary diseases of life because it is extremely difficult to pinpoint with any certainty where an individual contracted a virus or infection. Generally, Missouri courts do not award compensation to claimants who contract a virus, such as the flu, because the virus is so widespread and could easily be contracted in any location.
However, if the employee’s occupation puts them at greater risk than the general public, the disease could become compensable. This provision is especially important for healthcare workers, who may be in direct and consistent contact with infected patients or bodily fluids. When the employee works in situations where their exposure is greater than that of the general public, the courts look to the conditions of their workplace. If the conditions of their workplace are a direct cause of the employee contracting the disease, the courts may award compensation. Kelly v. Bata & Stude Contr. Co., 1 S.W.3d 43, 48-9 (Mo. App. 1999).
As coronavirus continues to spread quickly throughout the country, employees would have a difficult time meeting the Missouri standard for compensation for an occupational disease. For the majority of employees, there is no greater risk of contraction within the workplace than in any other sector of life. This is because most employees are just as likely to contract the virus at public gatherings, taking public transportation, or visiting a grocery store as they are in the workplace. Thus, the risk to the individual in the workplace is no greater than the general public, failing to meet the Missouri standard.
This risk may increase, however, for those who must travel internationally for their employment. If an employee has traveled to a country identified by the CDC as high-risk, such as China, Iran, or Italy, the employee would have an easier time making the argument that their business travel placed them at higher risk than the general public. If the employee subsequently contracted the virus, they would likely be able to meet the Missouri standard for compensability.
Similarly, medical professionals could be considered at greater risk of exposure than the general public because they are coming into direct contact with people who may be infected with the virus on a consistent basis. Unlike the general public, who are largely trying to avoid the disease, medical professionals are not shying away from contact with COVID-19. In fact, they are required to deal with it due to their work. Thus, like international travelers, healthcare workers who are in contact with the virus could claim a greater risk of exposure to COVID-19 it is likely that their claim would be compensable if they subsequently contract the virus.
With the exception of international travelers and medical professionals, whose claims should be evaluated on a base-by-case basis, the best practice at this point is for employers to deny worker’s compensation claims stemming from contracting COVID-19. However, if investigation points to those employees being at a greater risk than the general public of contracting the virus, or if a healthcare worker is exposed to a patient who has contracted the virus, those claims would likely be compensable.
A practice tip for employers with employees who have a greater risk of exposure to the disease is to create or update safety and hygiene policies for employees to match the recommendations by the CDC. Healthcare employers should have specific precautions in place for preventing COVID-19 in the workplace, as well as protocols for treating COVID-19 patients. Additionally an employer could limit the amount of required international travel as much as possible, especially to high-risk areas. If travel to those areas is unavoidable, an employer should make sure safety protocols are in place to minimize the risk of exposure.
As an extra measure of precaution, employers should alert employees of expected practices to reduce the risk of spreading all communicable diseases. Setting hand washing guidelines, providing hand sanitizer, and permitting work from home options (if possible) are all ways to increase office safety and reduce any potential employer liability. Lastly, require sick employees to stay home until they have a confirmed diagnosis or have been symptom-free for two weeks, as indicated by the CDC.
Though courts will likely treat coronavirus the same as any other communicable diseases of life, the increased transmission across the country requires that employers, especially of high-risk employees, should have safety procedures in place to limit exposure in their workplace.