The COVID-19 pandemic drastically changed the workforce and working conditions as we know it. As COVID-19 is easily transmittable and highly contagious, questions arose on how the pandemic could affect workers’ compensation claims nationwide. Consequently, some states implemented statutes regarding the eligibility for COVID-19 claims under workers’ compensation, in most instances for first responders.
These laws often provided a presumption of coverage for certain employees who were impacted by exposure to COVID-19. Unfortunately for businesses, this presumption of coverage shifts the burden to the employer or their insurer to prove that the COVID-19 infection was not work-related, thus, making it easier for the workers covered by these presumption statutes to file workers’ compensation claims.
Interestingly enough, neither the Alabama appellate courts, nor the legislature, have addressed COVID-19 as a workers’ compensation claim in the past two years, which means there has been no formal determination on whether COVID-19 claims in the state should be covered under workers’ compensation. This lack of a determination could bode well for businesses and employers.
Illness Coverage Under Alabama Workers’ Compensation Law
Employers should treat COVID-19 as any other workplace injury/illness for the purposes of determining compensability (i.e. eligibility for workers’ compensation coverage). For workers’ compensation claims related to COVID-19 to qualify for compensation under Alabama law, the virus would need to be an “injury”, or “occupational disease” as defined by law. Under the Alabama Workers’ Compensation Act (the Act), which is the basis for workers’ compensation matters in the state, an “injury” is defined to mean only injury by accident arising out of and in the course of the employment, and does not include a disease in any form, except for an occupational disease. Therefore, COVID-19 would properly be classified as an occupational disease, not an injury.
Alabama law defines “occupational disease” as “arising out of and in the course of employment . . . which is due to hazards in excess of those ordinarily incident to employment in general and is peculiar to the occupation in which the employee is engaged but without regard to negligence or fault, if any, of the employer. A disease . . . shall be deemed an occupational disease only if caused by a hazard recognized as peculiar to a particular trade, process, occupation, or employment as a direct result of exposure, over a period of time, to the normal working conditions of the trade, process, occupation, or employment.”
The term “disease” is not specifically defined by the Alabama legislature; however, Alabama courts have found that any disease can be compensable for Alabama employees as an “occupational disease,” only if the employee can establish a causal link to their employment both legally and medically (compensability). One might find this definition concerning, but there is good news for employers. Alabama workers’ compensation law is not intended to cover temporary disorders that do not impart lasting, chronic effects, such as ordinary colds, the flu, sniffles, or other routine illnesses that employees incur from time to time. Instead, a “disease” that can be found compensable must be a “serious disorder which has impaired the constitution or left in its wake some organic or chronic effect that has undermined the employee’s general health,” as stated in the 1981 ruling in Chrysler Corp. v. Henley.
What This Means for Alabama Employers
Therefore, for an Alabama employee to prove COVID-19 is a “disease” covered by workers’ compensation, they must prove that it was not temporary in nature. In addition, they will also have to prove that it was “occupational,” which means establishing that the normal working conditions over a period of time exposed them to an increased risk of contracting COVID-19 as stated in the 2008 ruling in ArvinMeritor, Inc. v. Handley. Given the pervasive economic, social, and employment disruptions that COVID-19 created globally, it is hard to imagine that any employee’s work environment during this time to be anything approximating “normal.” While it is possible that an Alabama court could deem their environment the “new normal,” so to speak, it remains questionable whether a claimant could meet this normalcy requirement.
The casual link between the occupational disease and employment would likely be the most difficult part of establishing compensability of a COVID-19 claim. To establish legal causation, the claimant would have to prove that (1) their disease arose out of and in the course of their employment; and (2) that it resulted from exposure to the conditions of their employment. The disease may be covered only if caused by hazards: (1) in excess of those ordinarily incident to employment in general (increased risk); and (2) different in character from those found in the general run of occupations (peculiar risk). The peculiar risk test can be established by the employee showing sufficient evidence that they were exposed to COVID-19 in a “substantially different manner” than persons in employment generally.
Finally, if able to establish legal causation, the employee would also need to prove medical causation to ultimately succeed on compensability and have their claim covered under workers’ compensation. The 1994 ruling in Ex parte Valdez stated that in other occupational disease cases a mere showing of exposure will not necessarily establish medical causation. When the disease is one that may, and often does, arise from nonoccupational factors, a claimant bears a heavier burden with respect to medical causation.
Based on the foregoing, as Alabama law currently stands, employees who contract COVID-19 would face an uphill battle in proving compensability. Nevertheless, certain professions, specifically first responders or those in the healthcare field, may have an easier time establishing legal causation.
Even then, however, the nature of the Act itself tends to establish that even if an employee could establish that her employment was the cause of her contraction of the illness, that employee would still have to possess permanent injuries resulting from COVID-19. As the long-term effects of COVID-19 remain uncertain and unknown in the medical community, it seems unlikely that an injured worker could obtain the medical evidence necessary to maintain such a claim in the Alabama courts.
Carson S. Campbell is an associate attorney in Swift Currie’s Birmingham office. She focuses her practice on defending employers, insurers, self-insureds and third-party administrators in workers’ compensation claims. Campbell may be reached at [email protected].