I came into law school from a rather non-traditional background; I have a bachelor's degree in microbiology and a master's in epidemiology, and I am a self-proclaimed infectious disease nerd. I could give a fun fact for just about any infectious disease you can name, and my friends and family know that I am not the person to watch an outbreak movie or TV show with.
That being said, law school doesn't provide a lot of opportunities to foster that interest. So when I started working in workers' compensation this summer, I was excited to see what kind of infections compensable injuries would be.
In looking into compensation cases in Tennessee, I began to learn that workplace associated infections are, understandably, a rather confusing topic. It can be difficult to pinpoint the exact cause of an infection, and determining whether an infection was causally related to employment for compensation purposes is not always cut and dried.
The biggest difference in these two cases was testimony by expert witnesses on whether certain types of infections could be related to certain types of injuries. Most litigated cases that involve a workplace associated infection are usually infections that arise after a traumatic injury or operation, and a common theme in determining causation in these cases is preexisting conditions that make an employee more susceptible to contracting an infectious disease. This susceptibility can favor the employee or the employer, depending on the presumptions granted to the expert witnesses and the credibility determinations made by the judge.
In light of the Covid-19 pandemic, I was also very interested in how cases of the disease contracted at work would fit into workers' compensation. Because the outbreak began relatively recently, and is still ongoing, there have only been a few published cases where employees sought benefits from contracting the disease at work. No Covid cases have been litigated in Tennessee yet, and there is very limited information on how states will handle these issues going forward.
In New York, for example, the Workers' Compensation Board views diseases contracted during an epidemic as a workplace accident and emphasizes that employees do not have to be “essential workers” to recover benefits. In California, Governor Newsom incorporated compensation for workplace contractions of Covid-19 into a May 2020 executive order.
In Florida, teachers sued the government seeking an injunction in response to an executive order requiring all schools to open in full, even if it were unsafe to do so. The government responded by claiming the teachers could file workers' compensation claims if they contracted Covid-19 in the workplace. The circuit court indicated that where an injunction could prevent the harm caused by Covid-19 before it happens, making teachers wait until they get sick to receive benefits would do more harm than good.
Ultimately, there are many unknowns regarding the Covid-19 work-related cases that have and will be filed in Tennessee. The biggest issue likely to arise from these cases will be proving that the disease was contracted in the scope of employment, especially as Tennessee and other states begin to lift restrictions.
It's never a bad time to evaluate how the court will handle emerging infectious diseases and pandemics. As evidenced by the past year, being unprepared hurts everyone. Hopefully, all the stakeholders involved will plan for how new infections will be categorized and compensated, which can save time and money in litigating future workplace illnesses.
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