TLDR

Most coronavirus claims will not be compensable under New York’s Workers’ Compensation Law. In general, a disease contracted by an employee within the course of employment may be compensable.^[1] To be compensable there must be a specific definite and extraordinary exposure.^[2] Most illnesses or infections alleged to be caused by exposure to co-employees or general workplace risks (like contact with the general public) will not be compensable in New York. Medical treatment is required for compensable cases and would include testing; however pre-injury testing and prophylactic measures such as quarantine are not considered “medical treatment” in New York.

Part I. How Traumatic/Specific Incident Claims Will be Handled: Nearly All Will Be Denied

§1.01 Standard of Proof for Entitlement to Medical and Wage-Replacement Benefits in Accidental Traumatic Injuries

To be compensable under the Workers’ Compensation law, an accidental injury must have arisen both out of and in the course of employment.^[3] Accidents arising “in the course of employment” are presumed to arise out of the employment, and this presumption must be rebutted by “substantial evidence to the contrary” for the employer to succeed in denying a claim.^[4]

A compensable disease may arise from an accidental injury. Two conditions must be established to sustain an award for an accidental disease. First, the inception of the disease must be assignable to a determinate or single act, identified in space or time.^[5] Secondly, it must also be assignable to something “catastrophic or extraordinary.”^[6]

§1.02 The Standard of Proof for Permanent Disability Benefits in an Accidental Traumatic Claim

This is the prime legal/factual issue to be established, negotiated, challenged, and litigated in a workers’ compensation case. In traumatic injuries, where the petitioner alleges permanent disability resulting from a specific accident, often the only avenue of defense is to challenge the “nature and extent” of permanent disability. The Board publishes “Disability Duration Guidelines” which set forth the medical impairment and vocational thresholds for entitlement to an award.

§1.03 Benefits and Treatment in an Accidental Traumatic Claim.

Under the New York Workers’ Compensation Law, four (4) types of benefits are available to injured workers:

1. Medical treatment – emergency and follow-up treatment for injuries.
2. Wage compensation for earnings – lost time while they recover from the immediate effects of their injury.
   1. When the claimant is 100% totally temporarily disabled (cannot work at all) this wage compensation is called “temporary total” and compensates the claimant for two-thirds of her pre-injury earnings (tax free) OR
   1. “Partial temporary,” when the claimant can do some work but is not earning their prior level of wages (usually because they can only work part time or have to work at a job that pays less than the work they were doing at the time of the accident). This is calculated as two-thirds of the difference between the old wages and post-accident wages.
3. Death benefits – payable to the dependents of a worker killed during the course of employment. This is two-thirds of their average weekly wage at the time of injury, subject to maximums and minimums, paid to the survivor for life.
4. “Permanency” benefits – payments of money to injured workers to compensate them for the “permanent effects” of an accident.

§1.04 Medical Benefits in Regard to Infectious Diseases.

Where the illness is found compensable, medical treatment includes diagnostic testing and is the sole responsibility of the employer/carrier.^[7] Medical benefits must be provided from the date of the loss – there is no waiting period for medical benefits.^[8] On December 1, 2010, the Medical Treatment Guidelines became the mandatory standard of care for injured workers, regardless of the date of injury or accident.^[9] These Guidelines have been supplemented and amended, effective September 15, 2014, and now include treatment pathways for carpal tunnel syndrome and non-acute pain. Medical care providers are required to treat all existing and new workers’ compensation injuries in accordance with the Medical Treatment Guidelines (MTG) which are incorporated by reference into the regulations. There are no Guideline references for infectious disease. Therefore any and all non-emergent treatment where the cost of care will exceed $1,000 must be specifically authorized by the carrier.

The claimant must be provided care “as long as the nature of the injury or the process of treatment may require.” This means that treatment must be provided so long as it is directed at returning the claimant to gainful employment. Not all medical treatment relates to disabilities that “arise out of and in the course of employment,” and those disabilities that do not arise from the employment (such as those from the natural aging process) are not compensable.^[10]

Negative test results and “screening” or preventative testing is not covered by the Act. Quarantine or isolation is a preventative/prophylactic measure that is not covered by workers’ compensation. Lost time due to quarantine would be compensated either directly by the employer (if at all), or in the case of furlough or work shutdown, by the state unemployment remedy.

Part II. How Occupational Exposure Claims Will be Handled: Deny Them!

§2.01 Defining Occupational Disease

A disease is considered to be compensable if it “is the result of a distinctive feature of the kind of work performed by claimant and others similarly employed, not an ailment caused by a peculiar place in which particular claimant happens to work . . . or caused by ordinary contact with a fellow employee.”^[11] In general, ailments contracted from common exposure not specific to the workplace should not be found compensable.^[12] Because the risk of coronavirus exposure or infection is not peculiar to any one workplace, with the exception of perhaps some medical or emergency response employments, a theory of general workplace exposure is unlikely to succeed for claimants alleging they contracted the disease due to exposure to co-employees or the general public in their workplace.

§2.02 Liable Carrier or Employer

In occupational exposure claims, the employer where the claimant was last injuriously exposed is liable.^[13] The liable carrier or employer may then seek reimbursement for apportioned prior exposures contributing to the overall condition.

§2.03 Types of Occupational Claims Found Compensable

Where the employee can show that the nature of the employment brought with it exposures to specific causes of disease or infection, then the resulting condition can be compensable. Examples of diseases that have met this standard includes pulmonary diseases such as bronchitis,^[14] infectious hepatitis,^[15] and staph infections.^[16] In those cases, the employee was able to demonstrate or allege a very specific exposure that was unique or peculiar to the employment.

§2.04 Benefits and Treatment in an Occupational Exposure Claim.

Benefits payable for occupational disease are the same as those payable for specific traumatic injury claims.^[17]

Under the New York Workers’ Compensation Law, four (4) types of benefits are available to injured workers:

1. Medical treatment – emergency and follow-up treatment for injuries.
2. Wage compensation for lost earnings – lost time while they recover from the immediate effects of their injury. When the claimant is 100% totally temporarily disabled (cannot work at all) this wage compensation is called “temporary total” and compensates the claimant for two-thirds of her pre-injury earnings (tax free) OR “Partial temporary,” when the claimant can do some work but is not earning their prior level of wages (usually because they can only work part time or have to work at a job that pays less than the work they were doing at the time of the accident). This is calculated as two-thirds of the difference between the old wages and post-accident wages.
3. Death benefits – payable to the dependents of a worker killed during the course of employment. This is two-thirds of their average weekly wage at the time of injury, subject to maximums and minimums, paid to the survivor for life.
4. “Permanency” benefits – payments of money to injured workers to compensate them for the “permanent effects” of an accident.

Medical treatment will include testing for claims where the illness is found to be compensable. Quarantine or isolation is a preventative/prophylactic measure that is not covered by workers’ compensation. Lost time due to quarantine would be compensated either directly by the employer (if at all), or in the case of furlough or work shutdown, by the state unemployment remedy.

§ 2.05 Medical Testing Exception Applying to “First Responders”

Pursuant to WCL 10(3)(a), testing and diagnosis for first responders is covered when “in the course of performing his or her duties, [the first responder] exposed to the blood or other bodily fluids of another individual or individuals.” This is an exception to the general rule that “testing” is not covered until/unless the underlying medical condition is compensable.

Part III: New York’s Other Benefits for Quarantined Workers

§ 3.01 What Other Benefits Are Available to New York’s Sick or Infected Workers?

A newly-passed (March 17, 2020) New York law will trigger Family Leave Insurance benefits to claimant who (a) have not fallen ill, and (b) whose work was closed due to government-ordered work closure related to COVID-19. The short answer is that if the employee is unable to work as a result of a government-imposed quarantine due to COVID-19, even if they are asymptomatic, they are eligible for family leave and short-term disability.

In terms of family leave and disability, the bill makes a number of notable changes. First, it is important to note that for any of the changes to take effect, there must be a government-ordered mandatory or precautionary quarantine/isolation for COVID-19. Voluntary isolation does not trigger the new benefits under the bill. Second, the imposition of a government-ordered quarantine is sufficient proof of entitlement to disability or family leave benefits under the bill. Third, being subject to a quarantine order makes an employee eligible to use their paid family leave and short-term disability benefits. Fourth, in all cases the imposition of a quarantine entitles the employee to unpaid sick leave for the duration of the act, however whether the employee is entitled to paid sick leave (and how many days) depends on the employer’s size and income (see below). If the employer provides paid sick leave, the employee is entitled to family leave and/or short-term disability after the days of paid sick leave. Using sick leave under the bill does not affect the employee’s accrued sick leave. Each employee is entitled to job protection under the bill: the employee must be restored to their former position when they return from such leave and there can be no retaliation or discrimination. It is also important to note that the provisions of the bill do not apply when an employee is asymptomatic or has not been diagnosed with any medical condition and they are physically able to work while under quarantine, whether remote or otherwise. In other words, employees that continue to work or are working remotely during a quarantine are not entitled to benefits under the bill.

With regard to family leave, the bill provides for family leave when an employee is subject to the quarantine or is providing care for a minor dependent child who is subject to the quarantine. The family leave is up to $840.70 per week. The bill also provides for disability benefits during the duration of the quarantine. The employee is only entitled to disability benefits after they have exhausted all paid sick leave under the bill. The maximum weekly disability rate under the bill is $2,043.92. Family leave and short-term disability can be paid concurrently, however this means the maximum weekly rate for such concurrent benefits is $2,884.62.

Based on the foregoing, if the employee is unable to work as a result of a government-imposed quarantine due to COVID-19, even if they are asymptomatic, they are eligible for family leave and short-term disability.

§ 3.02 Summary of the Bill

We hope the below makes the information in the bill more easily digestible:

• The bill creates specific definitions for “family leave” and “disability”:
• Disability – any inability of an employee to perform their regular work duties or other employment offered by their employer as a result of the COVID-19 quarantine after the employee has exhausted all paid sick leave under the bill. The disability benefits are payable on the first day of disability despite Section 204(1) of the Workers’ Compensation Law.
• Family Leave – any leave taken by an employee either when the employee is subject to the COVID-19 quarantine or to provide care for a minor dependent child of the employee who is subject to the COVID-19 quarantine.
• The effect on the employer depends on the number of employees and the employer’s annual income:
• 10 or fewer employees:
• Employees are entitled to unpaid sick leave for the duration of the quarantine.
• Employees are eligible for paid family leave benefits and disability benefits under the bill during the quarantine.
• If the employer’s net income was greater than $1,000,000 in the previous year, they must provide each employee subject to the COVID-19 quarantine with at least five days of paid sick leave and unpaid sick leave for the duration of the quarantine. After the five days of paid sick leave, the employee becomes eligible for paid family leave and disability benefits under the bill.
• Between 11-99 employees: during the quarantine the employer must provide at least five days of paid sick leave, after which the employee becomes eligible for family leave and disability benefits under the bill.
• 100 or more employees: each employee is entitled to at least fourteen days of paid sick leave during the quarantine.
• Public employers: each employee is entitled to at least fourteen days of paid sick leave during the quarantine.
• General rules:
• NO discrimination based on leave for COVID-19; the employee is entitled to the position they held prior to the leave when they return.
• Employees are to be compensated at their regular rate of pay for those regular work hours during which the employee is absent from work due to the quarantine.
• Using sick leave due to a COVID-19 quarantine does not affect the employee’s accrued sick leave.
• The coverage under the bill does not apply to quarantines imposed on the employee as a result of the employee traveling to a country where the CDC has issued a Level 2 or 3 travel health notice, the travel was not for employment, and the employee had notice of the CDC travel health notice and the limitations under the bill prior to such travel (essentially, an “assumption of risk” exception). These employees will be eligible to use accrued sick leave, or if they do not have accrued sick leave, unpaid sick leave must still be provided for the duration of the quarantine.
• How benefits are payable:
• Both disability and family leave under the Act may be payable concurrently to the employee upon the first day of an unpaid period due to a COVID-19 quarantine, however there is a weekly maximum benefit rate of $840.70 for paid family leave and a weekly maximum benefit rate of $2,043.92 for disability (maximum combined total of $2,884.62).
• The maximum weekly disability rate is the difference between the maximum weekly family leave benefit and the employee’s total average weekly wage from each covered employer up to a maximum of $2,043.92 per week.
• The issuance of a quarantine order is sufficient proof of a disability or the need for family leave.
• If the federal government introduces paid sick leave, family leave or disability benefits during the coverage afforded under the bill, the employee is entitled only to the difference between what the federal government provides and what they would have received under the bill.
• There is also an amendment to the Labor Law. Specifically, the bill introduces the addition of § 196-b, which changed the minimum sick leave requirements.

---

Have a question about a coronavirus claim in New York?

Contact Greg Lois, Managing Partner of Lois Law Firm LLC, with any questions.

---

[1] WCL § 3(2).

[2] McDonough v. Whitney Point Cent. Sch., 15 A.D.2d 191 (3d Dep’t 1961).

^[3] See WCL § 10.

^[4] See WCL § 21.

[5] Matter of Jeffreyes v. Charles H. Sager Co., 233 N.Y. 535.

[6] Matter of Connelly v. Hunt Furniture Co., 240 N.Y. 83.

[7] WCL § 13.

^[8] WCL § 4.13.

^[9] 12 NYCRR 324.2.

[10] Id.

[11] Paider v. East Park Movers, 19 N.Y.S.2d 373 (1967).

[12] Matter of Goldberg v. 954 Marcy Corp., 12 N.E.2d 311 (NY 1938).

[13] WCL § 44.

[14] Horne v. Barclay Home Prods., 540 N.Y.S.2d 567 (3d Dep’t 1987).

[15] Esposito v. N.Y.S. Willowbrook State School, 362 N.Y.S.2d 54 (3d Dep’t 1974).

[16] Furchtsam v. Binghamton Gen. Hosp., 263 N.Y.S.2d 746 (3d Dep’t 1965).

^[17] WCL § 39.