As of today, our country now has more confirmed cases of COVID-19 than any other country in the world. Physicians, nurses, hospital employees, law enforcement officers, and first responders work around the clock on the front line providing care for those infected, and are in direct contact with those suffering from this illness. Many of these brave caregivers have contracted the disease themselves or will in the near future. Some have lost wages as a result of quarantine, while most have incurred substantial medical bills, and some have even died as a result of their exposure at work.
Are these soldiers in this invisible war covered by workers’ compensation? Unfortunately, the answer is complicated and in many states the answer may be no. In New Hampshire, as a general rule, an occupational disease arising out of and in the course of employment should be covered by workers’ compensation. But the disease must “result from the conditions and obligations of the employment and not merely from the bare existence of the employment” to be compensable. Appeal of Lockheed Martin, 147 N.H. 322, 325 (2001).
First, how will the worker prove that the virus was acquired at work as opposed to exposure on the street, in a restaurant, or from a friend or family member? And second, can the worker survive New Hampshire’s “increased risk test?” Under the increased risk test, the employee may recover workers’ compensation benefits only if she proves that the injury or disease results from “a greater risk than that to which the general public is exposed.” Appeal of James Margeson, 162 N.H. 273, 283 (2011).
Together, this burden of proof imposes a high barrier to receiving workers’ compensation benefits. The unintended consequence is that those who put their life on the line to protect all of us are left without a remedy if and when harm strikes their family. These are the most essential workers – the workers who go in every day knowing they will be directly exposed to this contagion, but also knowing that without their efforts more people will die. How can we send these workers into these dangerous situations as part of their work and not have them covered by workers compensation? Surely, none of us would want this result.
Many states have already taken some action to allow coverage of these workers if they contract COVID-19. At Beaupre Law, we are urging New Hampshire’s Governor Sununu and members of the state legislature to take whatever action necessary – whether by executive order or legislation – to make sure these medical workers, first responders, and law enforcement officers are covered by workers’ compensation law should they become ill as a consequence of their work caring for infected citizens.
If you are one of the brave emergency workers – foremost, we thank you for your selfless and courageous efforts. Although the current law poses some challenges, things are rapidly changing and compensation is not impossible. We would be happy to speak with you about a workers’ compensation claim if you’ve contracted COVID-19.