As employers are still struggling with whether to bring employees back to work, many are asking if an employee contracts COVID-19, is it compensable under workers’ compensation?
The answer to that question is “it depends.”
Work Comp 101 - Tennessee
In Tennessee, in order for an injury or accident to be covered under a worker’s compensation claim the injury or accident must both “arise out of” and be “in the course and scope of” employment. “Arising out of” employment means that there is a causal connection between the injury and the employment, and “in the course of” employment refers to a causal connection to the workplace and looks at the time, place, and circumstances under which the accident or injury occurred. In fact, in Tennessee the law specifically says that the employment must “primarily” cause the injury.
A claim for compensation due to COVID-19 will probably be filed as an occupational disease. Although Tennessee law does not specifically define “occupational disease”, it does give examples such as a disease of the heart or lung. Although not specifically defined, typically ordinary diseases of life such as a cold or flu are not compensatory.
In order to prove compensability, the employee will need to show to a reasonable degree of medical certainty that the employment was more than fifty percent (50%) responsible for the needed medical treatment. In other words, the disease didn’t arise from a hazard that was “equally exposed outside of the employment.” Due to the nature of COVID-19 being highly contagious, it seems unlikely that the average office worker will be able to meet this threshold.
If the employee is an Essential Worker and is in repeated direct contact with COIVD-19 patients, such as nurses, doctors, and other health care workers, then that employee may have an easier time meeting the threshold.
This spring, several states introduced and passed legislative and regulatory measures to expand compensability for workers on the front line in the fight against COVID-19, such as those in the medical community, first responders, and government employees. However, to date Tennessee has not passed any new laws or regulations that would expand compensability, so the underlying requirements of "arising out of" and "in the course of" employment remain the standard to meet.