While much of America’s workforce is working remotely from home or are unemployed, there are numerous workers on the frontline of the COVID-19 pandemic. This includes firefighters, law enforcement officers, first responders, health care workers and many workers in the food distribution chain. If you are one of these workers and do contract COVID-19, do you have a compensable workers’ compensation claim against your employer for wage loss and medical bills?

Sadly, in Virginia, the current answer is that it is unlikely you will be able to prove a compensable worker’s compensation claim for contracting COVID-19. Furthermore, any of these cases are likely to be contested because they are so difficult to prove.

In order for a worker to prevail when claiming COVID-19 as a covered compensable “occupational disease” , they have to prove that the exposure was more than likely a direct consequence of employment and that there was not any significant exposure for this worker outside of the employment. For almost all workers, this high hurdle to compensability is not one they can prove. This is even true for health care providers.

The other route to compensability is to pursue a claim under an “ordinary disease of life” theory in workers compensation. But with “ordinary disease of life” cases, the burden of proof is higher then in a normal worker’s compensation case, the worker must prove their claim by clear and convincing evidence rather than a preponderance of the evidence. Very few of these cases are likely to be successful.

Ultimately because of the great difficult of pursuing “disease” cases under Virginia law it may be necessary for the state legislature and the Governor to step in and provide benefits that are not readily available to our brave men and women on the frontline during the COVID-19 pandemic. If you have questions about these issues or anything else related to your workers’ compensation case, please give us a call at (804) 294-2966.