The current COVID-19 pandemic is obviously an unprecedented public health crisis in American society. Numerous industries and organizations, including the legal community, are facing uncharted questions and challenges.
I’d like to examine one such question that is relevant to my particular area of legal practice, Workers’ Compensation in Maryland: whether someone who is deemed an “essential employee” and required to go into work during the pandemic, and who then contracts COVID-19, can file for workers’ compensation benefits?
Maryland’s workers’ compensation laws are in place to ensure that when someone is injured or becomes ill on the job, the worker and/or their families receive certain benefits in order to maintain financial and medical well-being. Those benefits include temporary total disability (TTD), which is a payment of two thirds of the worker’s average weekly wage for the time the worker is completely unable to work due to occupational accident or illness. Workers are also entitled to coverage of all medical expenses directly related to the occupational injury/illness by the employer’s workers’ compensation insurance. Additionally, permanent partial disability (PPD) benefits are sometimes available to compensate workers who suffer some degree of lasting negative consequences as a result of occupational illness or injury. There are other benefits as well, but these are some of the main ones.
MD Code Labor and Employment Section 5-101 defines an occupational disease as one that is “contracted by a covered employee: (1) as the result of and in the course of employment; and (2) that causes the covered employee to become temporarily or permanently, partially or totally incapacitated.”
However, the Employer/Insurer’s liability is limited by Md. Code Labor and Employment Section 9-502(d) which states compensation must only be paid if:
(1) the occupational disease that caused the death or disability:
(i) is due to the nature of an employment in which hazards of the occupational disease exist and the covered employee was employed before the date of disablement; or
(ii) has manifestations that are consistent with those known to result from exposure to a biological, chemical, or physical agent that is attributable to the type of employment in which the covered employee was employed before the date of disablement; and
(2) on the weight of the evidence, it reasonably may be concluded that the occupational disease was incurred as a result of the employment of the covered employee.
In 2019, Maryland’s highest court, the Court of Appeals, had a chance to examine the concept of “occupational disease” in the case of Baltimore County v. Quinlan, 466 Md. 1. That case involved a firefighter/paramedic who had developed degenerative tears in his meniscus. The case highlighted that usually an occupational disease is one that develops gradually over time as a result of conditions in the workplace. Some examples might be asbestosis or carpal tunnel syndrome. One of the questions in Quinlan was whether the claimant’s degenerative knee condition fell into the category of a compensable occupational disease. Ultimately, the Court determined that Mr. Quinlan’s knee condition was an occupational disease for which he was entitled to workers’ compensation benefits.
The Court highlighted a two-part test (with the second part divided into two sub-parts) for determining the compensability of occupational diseases. The first part involves an examination of the professional tasks of the specific employee in question. The second prong of the test involves an examination of whether: “(a) the ‘nature’ of the employment includes the hazards of the ailment the employee suffers from to a greater degree than that present in general employment; and (b) whether the employee’s job functions expose the employee to those hazards.’” The Court examined prior Maryland cases which demonstrate that courts are to look at the specific “risk factors” to which a given worker is exposed and which may give rise to an occupational disease.
The Court took into account various factors in determining that Mr. Quinlan’s knee condition was a compensable occupational disease. For example, the Court looked with favor on expert testimony in the record that firefighters/paramedics have a higher statistical likelihood of developing meniscal tears. The Court also highlighted that occupational diseases usually require some level of “repetitive” behavior over time which gives the disease a chance to develop on the job. Furthermore, the occupational disease has to arise out of conditions which are normal and natural to the employee’s job duties.
What does this mean in regards to COVID-19 and essential workers? I believe that, in light of the statute and case law discussed above, many essential workers in Maryland who are still showing up to work during the pandemic, and who contract COVID-19, will have strong arguments that their disease is a compensable “occupational disease.” Workers will have to describe for a Commissioner their specific job duties, and how doing those duties in the midst of a highly infectious pandemic could naturally give rise to the contraction of COVID-19. Workers will want to be as specific as possible in describing their job duties during the pandemic, and in showing why it is more likely than not that they contracted the disease at work as opposed to elsewhere. In line with Quinlan, if a worker can find statistical data showing that their profession has a higher risk of infection than others, this would be helpful.
Obviously, it seems that hospital workers and other healthcare workers who are exposed to COVID-19 patients have the strongest argument for compensability. However, I think that the statute and Quinlan provide an avenue for compensability for other essential workers as well. For example, grocery store checkout clerks. Their specific job duties entail standing face to face with hundreds of customers for several hours each day, and directly exchanging food and money between those individuals. This repetitive job duty certainly seems to give rise to the hazard of contracting COVID-19, especially if the grocery store worker can establish that during their non-working hours they remained isolated and at home. Nursing home employees and correctional officers also come to mind as classes of employees who could have strong claims for compensability when it comes to COVID-19.
Ultimately, the question of the compensability of COVID-19 as a compensable “occupational disease” in Maryland is a novel one, and does not fit neatly into the previously recognized classes of occupational disease. However, the statute and case law certainly at least allow for the possibility that COVID-19 is a compensable disease.
If you or someone you know contracted COVID-19 during the pandemic and you believe the disease is work-related, please contact attorneys Jack Schmerling, Esq. and Ilan Roth, Esq. at 410 787 0022.