Employers are faced with unique challenges as they continue to conduct business during the COVID-19 pandemic. As employees continue to work or return to work on their employers’ premises, new concerns arise regarding workers’ compensation claims with employees who contract COVID-19. This article analyzes COVID-19 under the Alabama Workers’ Compensation Act and discusses actions employers can take to defend potential claims.
COVID-19 is Likely Not an Occupational Disease Under the Alabama Workers’ Compensation Act
In order for COVID-19 to be compensable under the Alabama Workers’ Compensation Act, an employee must establish that the virus arose out of and in the course of his or her employment. An occupational disease is defined as “[a] disease 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 . . .” Ala. Code § 25-5-110(1). Therefore, an employee must prove, that as a result of his or her employment, he or she was exposed to the “risk causing the disease in a measurably greater degree and in a substantially different manner than are persons in employment generally.” Young v. City of Huntsville, 342 So. 2d 918, 921 (Ala. Civ. App. 1976).
In Young v. City of Huntsville, an employee alleged she was permanently and totally disabled due to developing bilateral thrombophlebitis — a condition causing blood clots — during the course of her employment as a licensed practical nurse (LPN). On appeal, the evidence presented showed nurses were no more susceptible to thrombophlebitis than store clerks, truck drivers, secretaries and assembly line workers. Id. at 922. Accordingly, the court affirmed the trial court’s decision barring compensation benefits, finding there was sufficient evidence to show thrombophlebitis, which can be caused by prolonged sitting or standing, was neither more prevalent nor peculiar to the nursing profession. Id.
Likewise, COVID-19 is likely not an occupational disease under the Alabama Workers’ Compensation Act for most professions, because the general public is at risk of contracting COVID-19. COVID-19 is spread through person-to-person contact with respiratory droplets. The virus is also passed through touching contaminated surfaces, where individuals subsequently touch their mouth, nose or eyes. In short, the virus can be contracted by anyone, anywhere.
Impact on Essential Workers
It goes without saying the risk of contracting COVID-19 is greater for essential workers, like health care professionals and first responders, who provide treatment to or transport individuals with COVID-19. In those professions, COVID-19 exposure increases, as the virus is concentrated in areas where such workers perform their trade. Accordingly, such scenarios, while not a talisman of compensability, would weigh more heavily, possibly pushing some Alabama courts to conclude sufficient evidence supported a finding of a compensable occupational disease. Meanwhile, to account for such greater risk, other states have extended their workers’ compensation laws to create a presumption of occupational disease for health care professionals and first responders impacted by COVID-19. However, Alabama has not created this presumption.
Steps Employers Can Take to Defend Claims
Although it will be an uphill battle for employees to prove their COVID-19 diagnosis arose out of and in the course of their employment, employers can take steps to prepare for potential claims. Employers can start by creating written safety policies in line with current CDC and OSHA guidelines regarding social distancing, masking, disinfecting, personal protective equipment (PPE) and quarantining. Once those policies are created, employers should train employees regarding expectations. If possible, employers should perform audits to make sure employees are compliant with safety protocols and document when noncompliance is identified. Disciplinary measures should also be used when noncompliance is found. Having written policies and procedures in place will assist employers in defending potential claims.
Utilizing the Willful Misconduct Defense
Under the Alabama Workers’ Compensation Act, when an injury or death arises out of and in the course of a person’s employment, he or she is entitled to compensation, provided the injury or death was not caused by his or her own willful misconduct. Ala. Code §25-5-31 and Ala. Code §25-5-51. Employers handling workers’ compensation claims involving COVID-19 can benefit from using the defense of willful violation of a known safety rule, if there is evidence the employee failed to follow safety protocols thereby causing the COVID-19 diagnosis. A mere violation of a safety rule is insufficient to bar compensation as the failure or refusal must be willful (of note, such a willful misconduct defense would not bar medical benefits under an otherwise compensable occupational disease claim).
The court in Musgrove Construction, Inc. v. Malley, 912 So. 2d 227 (Ala. Civ. App. 2003), lays out the requirements for establishing willful misconduct due to the violation of an employer’s rule. Under this case, an employee commits willful misconduct when “he understands the consequences of disobeying that rule, he deliberately chooses to disobey the rule, and his choice to disobey that rule is unreasonable under the circumstances.” Id. at 235. In Musgrove, the court found no willful misconduct where the employer failed to prove the employee’s failure to wear rubber gloves as instructed caused his electrocution. Id. at 237.
The main challenge for employers in using the willful violation of a known safety rule defense will be proving that an employee’s failure to follow its COVID-19 safety protocols actually caused the employee to contract the virus (given the well-known difficulties tracking the virus). As the risk of contracting the virus is higher among essential workers, the defense would likely be more viable with claims involving those professions.
Nevertheless, employers should take affirmative steps to limit exposure by developing policies and procedures to reduce the risk of COVID-19 in the workplace. At the very least, by taking preventative measures, an employer can make it tougher for an employee to show his or her COVID-19 diagnosis arose out of and in the course of his or her employment.
Kayla Washington is an attorney in the Birmingham office of Swift, Currie, McGhee & Hiers LLP, representing companies in matters related to insurance coverage, commercial litigation and workers’ compensation. She can be contacted at [email protected].