Workers’ Compensation and COVID

With some schools returning to in-person instruction or requiring staff to be present on campus for remote instruction, administrators are asking about workers’ compensation. Could a COVID infection be compensable as a work-related illness for employees in Oklahoma? The short answer is that we currently don’t know.

Oklahoma workers’ comp law (85AO.S. Section 65) tells us  an employee suffering from an “occupational disease” shall be entitled to compensation if such disease arose out of work activities within the scope of employment. The relevant part of that statute reads as follows:

D.1. “Occupational disease”, as used in this act, unless the context otherwise requires, means any disease that results in disability or death and arises out of and in the course of the occupation or employment of the employee or naturally follows or unavoidably results from an injury as that term is defined in this act. A causal connection between the occupation or employment and the occupational disease shall be established by a preponderance of the evidence.

2. No compensation shall be payable for any contagious or infectious disease unless contracted in the course and scope of employment.

3. No compensation shall be payable for any ordinary disease of life to which the general public is exposed.

Assuming for the sake of argument that COVID is considered an “occupational disease”, the next hurdle is causation. Proving that one contracted COVID from a particular workplace will likely be difficult.

To that end, some states like California and Illinois have enacted new legislation that creates a rebuttable presumption in favor of workers’ comp eligibility for employees who become ill with COVID and who are employed in certain sectors, such as healthcare, first responders and warehouse workers. Oklahoma has no such presumption at this time.

For federal workers, the U.S. Department of Labor states that employees who contract COVID during the course of their federal employment are entitled to workers’ compensation under the Federal Employees’ Compensation Act (FECA), so long as certain conditions are met: FECA benefits due to COVID.

When written, our state statutes obviously didn’t contemplate a then-unknown COVID pandemic. Therefore, the outcome of these types of claims will likely be very fact-specific and could take some time to get hammered out.