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COVID-19 and Ohio Workers’ Compensation – Can Employers Insulate Themselves from Liability?

By Stacy Stefanik:

COVID-19 impacts businesses and employees in several ways. Not only does it prevent some businesses from running, but it also affects layoffs, paid sick leave, taxes, and possible workers’ compensation claims for employees who have contracted COVID-19.

The question of whether COVID-19 could be an approved workers’ compensation claim has been raised by businesses and employees. The best answer at this time is “possibly”. Since COVID-19 is new, the Ohio Bureau of Workers’ Compensation (“BWC”) has never processed a claim for this condition and therefore, no one can say with certainty how it will respond.

However, the BWC released a resource titled, “Coronavirus (COVID-19) Frequently Asked Questions.” You can find this at:  https://www.bwc.ohio.gov/downloads/blankpdf/COVID-19-BWCFAQs.pdf.  As a response to whether COVID-19 is a valid workers’ compensation claim, the answer provided by the BWC is: “It depends on how you contract it and the nature of your occupation. Generally, communicable diseases like COVID-19 are not workers’ compensation claims because people are exposed in a variety of ways, and few jobs have a hazard or risk of getting the diseases in a greater degree or a different manner than the general public. However, if you work in a job that poses a special hazard or risk and contract COVID-19 from the work exposure, BWC could allow your claim.”

It is clear that the BWC is not closing the door on COVID-19 claims. It is also clear that an employee who is requesting the approval of such a claim has the burden to show

the nature of his or her occupation and how he or she contracted the disease. In order for COVID-19 to be a viable claim, the employment must have involved a peculiar risk that is different from that to which the public and employees are generally commonly exposed. The issue is whether the employee in his or her daily activities was more likely than members of the general public to become affected.

Some employees encounter a peculiar risk of exposure to COVID-19 every day based upon their job duties. Occupations at the top of this list are first responders, doctors, nurses, and hospital workers. Not only are these workers unable to self-isolate for weeks or months at a time, but also, they must constantly interact with others in close contact or with physical touch. Although workers in these fields are educated and instructed to wear personal protective equipment, that does not protect employers from a worker filing a claim for COVID-19.

A business can take precautions that would support an argument against approval of a claim, but it cannot limit its liability from COVID-19 claims entirely. And it certainly cannot protect itself through waivers signed by employees. Ohio law prohibits an employee from waiving rights to compensation or benefits, with two exceptions that are not relevant to COVID-19[1].

On top of that, workers’ compensation laws are liberally construed in favor of employees[2]. Due to this, businesses cannot assume that claims for COVID-19 will not be approved. Employers are not in the clear simply because the entire world is exposed to COVID-19 at this time. The BWC will most likely decide the viability of a claim on a case-by-case basis depending on the specific work exposure.

Dworken & Bernstein Co., LPA has experienced workers’ compensation attorneys who can answer questions regarding work exposure to COVID-19 or Ohio workers’ compensation. Please contact us at (216) 861-4211 or (440) 352-3391 to discuss your situation on this issue further.

[1] Ohio Revise Code § 4123.80

[2] Ohio Revised Code §4123.95

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