Occupational disease claims require the following elements: A contracted disease, as the result of and in the course of employment, which leads to a disablement. The ailment or illness must also be an expectable consequence of the specific working conditions inherent to the employment.
Teachers, paraprofessionals, school personnel, bus aides, and others whose work requires them to interact closely with members of the public are at increased risk of infection. They are compelled, by the nature of their employment, to work with the general population to a degree far exceeding the governmental health regulations/dictates currently in effect pertaining to the general public. It is universally believed that the infectious properties of this pandemic include contagion via community transfer by asymptomatic individuals. Our expectation is that employers and their insurers will deny workers’ compensation benefits to afflicted employees. It is foreseeable that they will contest claims relying on the notion that viral contraction is a general public threat, and that the source of contagion is therefore unidentifiable.
Accordingly, it is VITAL that all workers subjected to the transmission of this virus as a consequence of their employment diligently document any potential work-related exposures. This shall include, but not be limited to, keeping a journal of the following:
- Direct or indirect contact with co-workers or anyone who has been diagnosed with the virus or exhibiting cold or flu-like symptoms;
- the development and/or progression of any physical symptoms;
- circumstances required by the employer which do not allow for recommended social distancing;
- work requirements which result in unavoidable exposure(s) to gatherings;
- instances which do not practically allow employees to exercise recommended hygiene regiments; and
- any correspondence or notifications from the employer regarding risks, guidelines, and procedures.
The application of existing laws to unique circumstances often results in, at least initially, a period of uncertainty. It is not currently clear which COVID-19 cases will be treated as workers’ compensation claims. It is incumbent on all of us to be proactive in preparation for the unfortunate possibilities we face. This is especially imperative for attorneys who advocate on behalf of employees affected by this emergency. Thorough anticipation and advanced planning are essential elements of any crisis response, including the upcoming legal challenges which lie ahead for so many of those working to protect our communities.
Employees should feel free to call us at 410-244-1010, or email Dan Udoff at udoff@kahnsmith.com.