I want to note that this issue should be treated as an unsettled area of the law, as the foundational case law cited by the instructors are Appellate and Supreme Court cases from the 1940’s. So these are the rules as established for the last 70 years (literally), but I can easily see the WCAB wanting to re-visit these issues given the novel circumstances of COVID19.
With that, I think the law currently is ‘on our side’ as it stands : At this time we are protected by the general rule, reiterated under a 1998 CA Supreme CT case (Latourette), that ‘non-occupational’ diseases, such as the flu or colds are generally non-industrial. The SCT said specifically :
“[I]n the area of nonoccupational disease, ‘[t]he fact that an employee contracts a disease while employed or becomes disabled from the natural progress of a nonindustrial disease during employment will not establish the causal connection.’” … “The narrower rule applicable to infectious diseases arises from the obvious problems of determining causation when the source of injury is of uncertain etiology, the product of invisible and often widespread viral, bacterial, or other pathological organisms. The potentially high costs of avoidance and treatment for infectious diseases, coupled with the fact that such illnesses often cannot be shown with certainty to have resulted from exposure in the workplace, also explain the different line-drawing by our courts in the area of nonoccupational disease.”
COVID19 would certainly be deemed legally to be a ‘nonoccupational disease’, like the flu or a cold. “Non-occupational diseases” are defined as “one that is not contracted solely because of an exposure to work or because it is related to a particular type of work.”
Putting these points together, I see this standard as a very strong presumption that an EE’s contracting a ‘non-occupational’ disease / COVID is not industrial – especially where that particular illness is a widespread, easily transmitted, qualified ‘pandemic’ like COVID19. Moreover, beyond the issue of the practical difficulty of showing industrial exposure/causation for a pandemic, I am encouraged by SCT’s citation to public policy and the practical costs on the WC system by overwhelming it with claims that have their proximate cause in a public health crisis.
Practically speaking, I feel good this rule will hold up. In my view, the CA courts always defer to drop the burden of exposure onto the CA WC system as a catch-all for all the social welfare benefits that slip though the other social systems (private health insurance, EDD, unemployment, mediCal/medicare, civil liability insurance). In other words, the best logic for why we ‘always lose’ as the employer in WC, as I can assume, is : the injured is an employee, the employer/insurer is obviously making money b/c they are still in business, therefore the employer/insurer (not the EDD, not private health insurance, not the State) is in the best position to absorb the costs. BUT – with that, the Courts always draw as very strict line regarding jurisdiction, regarding what gets into the WC system, and I think this is done out of fear of overwhelming and crashing the system. Point being, I think the Latourette rational will hold up, generally speaking, and we should be relatively safe from COVID19 cases with WBS. We may see them – sadly, I expect them – but based on what I see, I think we can fight them.
WITH THAT – There are (OF COURSE 😝) exceptions to this general rule, and I want to briefly mention them, as I think we need to cognizant of possible special cases that we may see:
First is under this case from 1942, Bethlehem Steel : In that case, there was an eye disease epidemic throughout San Francisco. Lower court ruled non-occupational disease given the general outbreak in the region. The SCT overturned, noting that the particular group of 10x shipyard workers who all worked on one dock had a significant higher proportion of cases than the general public. Thus, working on that dock constituted a ‘special exposure’, and entitled the 10x workers to WC claims.
I don’t know if that logic will hold up with COVID19. COVID19 is so wide spread, so easily transmitted, I think it is going to very very hard to show that one of our ‘jobsites’ had a disproportionate ratio of cases to constitute ‘a special exposure’. Maybe that argument could be made if the disease was not so widespread, or our EE’s were at a high risk location like a nursing home…. But in an outbreak where there are projections of possibly hundreds of thousands of infected, I just don’t see even the CA Courts going so far as to open pandora’s box with this expection. Weirdly, the more widespread COVID19 becomes, the stronger I think arguments against this exception become.
I think the most prudent action would be stay cognizant of reports of ‘clusters’ of infections at the jobsite. I am not sure what general labor policy you are instituting and such things are beyond the scope of my knowledge being a WC attorney, but it probably would be a good idea review policy with your labor attorney on how employers are handling workers who report being sick and have ER’s instruct known-infected EE’s to self-quarantine (documentation is always good too!) – but again, I defer to your general Labor counsel on that issue. Certainly, if known infected are requested to be at work, and more get infected, your chances of a BETHLEHEM STEEL exception go up (all be it, I still think unlikely given the wide spread exposure).
Next – and much less relevant to us – is this exception under another SCT case, Maher. Basically, where the ‘instrumentality’ of employment is established as the probable cause of transmitting the non-occupational disease, the presumption of non-industrial exposure will not hold. In other words, this is the case where there is a pandemic, but the nurse at the ICU accidently sticks themselves with an infected needle, or maybe even gets sick from a patient coughing in their face…… it seems to have to be a direct exposure, facilitated by specific functions / tools from a specific job. Not facts of employment we need to be worried about, I think.
And quick added bonuses ( that I was happy to hear ) :
- TD :: As far as an injured work on Modified Duty, and then the whole jobsite is shutdown b/c of the quarantine – the instructors seem to think that the Ochoa case (where TD is defined to be ‘wage replacement’) would be controlling, and an EE would not be entitled to TD if dismissed from the jobsite with the rest of the entire work force for quarantine / work stoppage. Basically, if work shuts down, there are no wages to be replaced – so no TD. I am not entirely convinced of this argument, as there is other case law regarding partial layoffs of workers on modified duty results in TD….. but I like the Ochoa argument to start litigation with if this becomes an issue.
- TD BENEFITS FOR QUARANTINED EE’s: An EE dismissed from a job site to self-quarantine would likely not be entitled to any WC benefits, as contracting the disease alone with no need for medical treatment does not constitute ‘INJURY’ under the Code, and thus no WCAB jurisdiction for benefits. I think this is a solid argument (again – it goes to jurisdiction 😊 ) and definitely should be utilized if we see any claims for ‘quarantine TD’.
Well – that is all I got. Feel free to follow up with any questions. We are in uncharted territory with all this – so, back in Trenton, as my buddy’s “Uncle Tony” (who was in a tank division in WW2) used to say ::: “you don’t run through a mine field – one step at time, and worry about the other side of the field when you get there”.
Adam Storm – Jr. Partner – Los Angeles Office