If you turn on any news channel today, or at any point lately, it seems we are constantly inundated with a minute by minute account of updates to the pandemic now called COVID-19. Nonessential businesses are closing, people are locking themselves in their homes, and the ability to easily find necessary items is a distant memory. While questions of how the virus will affect hourly workers, the economy, and students unable to attend school on campus are among the topics covering the air waves, a real concern yet unaddressed is whether contracting the coronavirus is potentially compensable by workers’ compensation… until now. Here is the information any employee hoping for a compensable claim should consider before filing a claim.
According to Alabama Code § 25-5-110, an “occupational disease” that is compensable by workers’ compensation is one “arising out of and in the course of employment.” It is due to “hazards in excess of those ordinarily incident to employment in general and is peculiar to the occupation in which the employee is engaged but without regard to negligence or fault.” This means, the employee has the burden of proving that the disease contracted was “caused or aggravated by the nature of the employment.”
The normal reaction to reading this standard is to wonder how any person could rationally trace the source of their contracting a virus back to the workplace. While one (morbid) spot of hope could be a fellow employee also diagnosed as positive for the virus, it is more probable that this will not be the case. In such situation, we look to previous litigations of infections and viral diseases for potential avenues of proving the employee’s claim.
One such case is Hyster Co. v. Chandler, in which a worker recovered compensation for his lung disease resulting from his working conditions. The reason this particular case succeeded is because a surgeon was able to look at the worker’s lungs during surgery and observe first-hand the scarring of the lungs due specifically to exposure to foreign substances to the body. From this personal observation and knowledge of the excessive dust at the workman’s jobsite, the surgeon was able to testify in court that the lung damage and subsequent disease was directly caused by the conditions of his employment, which resulted in an award of workers’ compensation.
While the Hyster case was a success, the striking difference between that outcome and a potential COVID-19 claim is that the virus is not caused by a substance readily visible to the human eye. The virus can stay airborne for three hours and live on surfaces for as long as three days. Workers that come into contact with the public are certainly at greater risk for exposure than people that are quarantined. Certain jobs, like doctors, nurses, healthcare workers, first responders, and grocery store employees require more interaction with people, increasing the likelihood for infection. Preparation is so important for avoiding exposure to COVID-19.
We have written other blogs and created videos addressing various concerns about COVID-19 and employment. Please click here for videos: https://bit.ly/2QEndsM and here for blogs: https://bit.ly/2UhuP6E.
For updated information from the Centers for Disease Control and Prevention: http://bit.ly/2vONj55
If you are hurt on the job due to unsafe working conditions, seek legal counsel, as you may be entitled to workers’ compensation or other benefits. As we have since 1967, we will continue to protect the legal rights of our clients – those who are hurt on the job while working for Alabama employers. If you have been injured on the job and want to learn your rights, please consider contacting the Nomberg Law Firm. Our office number is 205-930-6900 and website www.nomberglaw.com. Our office is located in Birmingham, Alabama. We handle cases throughout our great State.
Bernard D. Nomberg has been a lawyer for more than 20 years. Bernard has earned an AV rating from Martindale-Hubbell’s peer-review rating. In 2019, Bernard was named a Super Lawyer for the 7th year in a row.
 Alatex, Inc. v. Couch, 449 So.2d 1254, 1257 (Ala. Civ. App. 1984).
 Hyster Co. v. Chandler, 461 So.2d 828, 830-31 (Ala. Civ. App. 1984).