The COVID-19 emergency has impacted businesses throughout the country, from placing restrictions on reopening to dealing with the nuances of the CARES Act. Another workplace issue that will rise out of this national emergency is how the workers’ compensation system will deal with COVID-19 claims.

Workers’ compensation is usually the exclusive remedy for employees injured at work. The system benefits employees by providing injured employees the prospect of swift and sure compensation, without having to prove their employer was at fault. It also benefits employers by eliminating the risk of tort claims by injured employees alleging that the employer’s negligence (or worse) caused the employee’s injury. Generally, in order for an injury to be covered under workers’ compensation, an employee must show that the harm suffered by the employee was caused by an “accidental personal injury” or “occupational disease” “arising out of and in the course of employment.” Md. Code Ann., Lab. & Emp., § 9-101.

Occupational diseases are usually defined as illnesses that are caused by the nature of the circumstances surrounding a workers’ job. For that reason, workers’ compensation normally does not cover routine community-spread illnesses, like the cold or flu, because employees cannot usually trace their disease to their work. The burden is on the employee to prove that his or her illness was the result of exposure arising out of and in the course of employment. These rules would guide an employee’s claim for benefits related to COVID-19 exposure that was alleged to have occurred at work.

Under current Maryland law, a claimant alleging a work-related COVID-19 infection would need to prove that an exposure at work caused his or her COVID-19 infection. However, this may be a Herculean task for many employees due to widespread community spreading throughout Maryland and surrounding areas. Additionally, there will likely be many issues raised by employers regarding the proof needed to file a workers’ compensation claim, such as whether a positive test is required, which will create significant issues for employees in areas with low testing availability.

Due to these issues, many states are reviewing whether to legislatively modify a workers’ burden of proof related to COVID-19 infections. Specifically, many states are reviewing whether to create an “irrebuttable presumption” that employees in certain fields, such as healthcare workers and public safety employees, contracted COVID-19 at work.

The Maryland legislature has not proposed any bills regarding a COVID-19 presumption, but many other states have introduced bills in that regard. In Missouri, the state enacted an emergency rule providing a presumption that first responders contracting COVID-19 have a compensable occupational disease claim. Nearby, there is pending legislation in Pennsylvania looking at whether workers employed by a life-sustaining business or occupation, which results in a period of hospitalization, quarantine, isolation or other control measures due to infections or exposure, shall establish a presumption that the individuals’ medical condition or inability to work is work-related. Trends nationwide show more states are reviewing these types of regulations, and there is growing demand from emergency personnel to provide additional workers’ compensation coverage.

In the current environment, where it is unclear what coverage will be available for claims relating to COVID-19, employers should be aware of the possibility of tort claims from employees that contract COVID-19. Indeed, we have already begun to see such claims filed. Employers should continue to follow CDC and OSHA guidelines relating to safety, as well as local governmental restrictions, in the event that they are required to defend a claim that the employer negligently, or even recklessly, required employees to work in unsafe conditions. In the event a claim is received, employers should review all possible coverage and provide notice to their carriers of workers’ compensation, employment practices liability and general liability to give the best possible chance of coverage for the claim.

This alert was written by Kelly Lynch, a lawyer in the Frederick office at Miles & Stockbridge.

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