Pursuant to Georgia’s current workers’ compensation law, whether a case of coronavirus will be compensable needs to be evaluated under Georgia’s “Occupational Disease” statute. An occupational disease requires the following elements as outlined in O.C.G.A. § 34-9-280(2):
- A direct causal connection between the conditions under which the work is performed and the disease;
- The disease followed as a natural incident of exposure by reason of employment;
- The disease is not of a character in which the employee may have had substantial exposure outside of employment;
- The disease is not an ordinary disease of life to which the general public is exposed; and
- The disease must appear to have had its origin in a risk connected with the employment and to have flowed from the source as a natural consequence.
The claimant must prove all five elements listed under the statute and generally, these types of claims are considered harder to prove than occupational injuries. However, there is limited case law in this area. Below, we have broken down the five criteria with our recommendations on each.
- Causal Connection
The first element the claimant must prove is “a direct causal connection between the conditions under which the work is performed and the disease.” For cases involving the coronavirus, this generally means the claimant must show he or she was directly exposed to an infected individual or contaminated surface while at work.
On the statute’s face, claimants must prove a direct connection between their specific disease – in this case coronavirus – and the conditions of their employment. In Fulton-Dekalb Hospital Authority v. Bishop, 185 Ga. App. 771 (1988), an EMT worker sought workers’ compensation benefits under the occupational disease theory after he contracted Hepatitis B. Georgia’s Court of Appeals agreed that his case was not compensable because he presented no evidence that any of the people with whom he had come into contact at work during the incubation period for Hepatitis B was a contagious carrier of the disease.
Proving a direct causal connection between coronavirus and employment could be challenging. Testing for coronavirus has been limited, but is increasing. Given the lack of testing, claimants could have difficulty proving another person’s cough, sneeze, hug, touch, etc. transmitted coronavirus to them.
- Exposure Natural Incident of Employment
In this section, the claimant must show that “the disease followed as a natural incident of exposure by reason of employment.” This means claimants must have contracted the disease through their job duties. If two co-workers are dating and infect each other through intimate contact, even if that happens to take place in the workplace, that would not be considered a natural incident of employment. However, if a janitor contracts the virus at work by touching a contaminated surface he was cleaning as part of his job duties for his employer, this would likely be considered a “natural incident” since it arose out of his job duties.
As with workers’ compensation in general, the “natural incident” language does not consider negligence. Thus, if a claimant were to violate social distancing or safety policies meant to curb the spread of the disease, then she could still successfully prove this element. Additionally, under Georgia law, if an employee alleges an employer did not provide appropriate safety protections at the job site, the worker’s only recourse is through workers’ compensation.
- No Substantial Exposure Outside Employment
Here, a claimant must show that “the disease is not of a character in which the employee may have had substantial exposure outside of employment.” This requirement is where a claimant’s coronavirus claim will be the most likely to fail. The language of this requirement heavily favors employers by using the word “may,” a far lower bar than for the employee’s case. Before and after the State-mandated lockdown, this element could be difficult for a claimant to prove. As long as the claimant could have been exposed to coronavirus somewhere outside of his employer, then the claim should not be compensable. If the claimant attended a concert, movie theatre, restaurant, or any other public gathering, he may have had “substantial exposure outside of employment.” In the Bishop case where the EMT worker became infected with Hepatitis B, the court denied his claim because he may have had substantial exposure outside employment, despite being three to five times more likely to contract it as an EMT than the general public.
However, State-mandated stay-at-home orders could impact this element because many Georgians are not traveling outside of their homes with the exception of purchasing essential goods and services. For example, if a claimant works at an essential retailer where she comes into contact with customers frequently, but rarely leaves her home otherwise except to go to the grocery store, then she likely did not have “substantial exposure outside of employment.” This is a highly fact dependent element and needs to be evaluated against each claimant’s particular circumstances and the actual date of alleged exposure.
- Not an Ordinary Disease of Life
The claimant must also prove that coronavirus “is not an ordinary disease of life to which the general public is exposed.” The Bishop Court took this factor in consideration when denying the EMT’s claim since Hepatitis B was an ordinary disease to which the general public was exposed. The year the court heard the Bishop case, 1988, the CDC counted 23,175 reported cases of Hepatitis B, but estimated the actual figure at 65,000. For reference, to date there have been over 1,200,000 reported coronavirus cases in the United States. Therefore, coronavirus could be deemed “an ordinary disease of life.”
Furthermore, the Court of Appeals specified the disease must be one to which the general public of Georgia is exposed. McCarty v. Delta Pride, 247 Ga.App. 734 (2001). This specific analysis arose in McCarty, when a claimant became infected with malaria while working a construction job abroad. Since he proved that malaria is not pervasive in Georgia, the claimant met this statutory requirement. On the other hand, coronavirus has impacted the entire globe, and there is no doubt Georgia residents are at risk of this new virus. As such, even though coronavirus is new to us, it could still be considered a disease of life since it is global, unlike malaria, which is limited to certain geographical areas outside of Georgia.
- Disease Flows from Natural Employment Risk
Finally, claimants must prove that their coronavirus “must appear to have had its origin in a risk connected with the employment and to have flowed from the source as a natural consequence.” This element is not likely to be the center of much debate. As it pertains to coronavirus, as long as the claimant performed some duty that could have exposed him or her to the virus, it therefore would have flowed as a natural consequence. The language of this particular element is somewhat claimant-friendly since the worker needs only to prove the disease appeared to come from an employment risk. If the claimant worked in any capacity that placed him or her within six feet of another individual, the disease could have flowed out of that risk
Actions in Other States
As it stands now in Georgia, Governor Kemp has not signed an executive order deeming coronavirus compensable. However, governors of other states have issued two types of coronavirus executive order. In the first, claims involving infected healthcare workers are presumed compensable, while in the second, more expanded version, claims from all essential workers who develop the infection are presumed compensable.
Two Illinois business associations filed a lawsuit attacking an emergency amendment issued by the Illinois’ Workers’ Compensation Commission that expanded workers’ compensation benefits to create a rebuttable presumption in favor of infected front-line workers. The associations claimed that such a substantive change in the law should have gone through legislation, not merely an administrative rule change. The business associations proved successful with their argument to the extent the Illinois Workers’ Compensation Commission repealed the emergency order by unanimous agreement, implying they would defer to the governor or legislature.
At this point, we anticipate that neither an executive order nor legislation are likely in Georgia.
Practical Application and Recommendations
A positive test, or even mild symptoms, does not automatically mean an employee has a compensable workers’ compensation claim. Depending on the severity of the case, the claimant may not even require treatment. Nevertheless, if a claimant reports a claim or seeks treatment, his employer should, in most circumstances, at least report the claim to its workers’ compensation carrier. Once a business reports a worker has tested positive or is complaining of symptoms, the carrier will need to perform an investigation to see if the facts of each individual case meet the five-pronged test outlined above.
Our final thoughts on compensability are detailed below, and depend on the claimant being able to get around the “ordinary disease” prong:
- An essential worker alleging coronavirus during the lockdown is more likely to be successful than if exposure occurred before or after the lockdown.
- Healthcare workers and first responders may be able to establish a compensable claim if they can establish a specific exposure. They may also be able to establish a claim by showing that because of the nature of their jobs they are regularly coming into contact with people who have the virus.
- Other workers at businesses that were deemed essential (such as grocery workers) would still need to establish a specific exposure, or at least argue that a lack of proper safety precautions made them more susceptible to exposure. The alleged “negligence” of their employers would not be a separate tort claim, but just proof that the circumstances of their job put them more at risk than the general public.
- For other employees now returning to work, as a legal matter, the barrier will be higher in showing the circumstances of their work made them more likely to be exposed.
- In situations where there are many cases of positive tests at one plant, this scenario could make a finding of compensability more likely.