This article is a follow up to the Coronavirus and Virginia Workers’ Compensation article and deals with how social distancing precautions and the Governor’s stay-at-home order may impact the Virginia workers’ compensation treatment of Coronavirus claims. As previously discussed, it seems likely that Coronavirus claims will fall within the ‘ordinary disease of life’ category of claims under the Virginia Workers’ Compensation Act. These types of claims impose a heightened burden of proof on claimants to show by clear and convincing evidence that the virus arose out of and in the course of their employment and did not result from causes outside of the employment.
In an effort to flatten the curve in Virginia, Governor Northam issued a number of orders aimed at mitigating the Coronavirus threat. Executive Order 53 required certain businesses to close or to significantly modify their business models to comply with the ban on gatherings of 10 or more people. It also required all business to adhere to social distancing recommendations, enhanced sanitizing practices on common surfaces, and other appropriate workplace guidance from state and federal authorities while in operation. Additionally, Executive Order 55 requires Virginians to remain at home except for certain enumerated purposes, such as obtaining food, medical services, or going to and from work.
How might these orders effect potential Coronavirus workers’ compensation claims? They may make it easier for claimants diagnosed with Coronavirus to meet their burden to show that the virus arose out of and in the course of their employment and did not result from causes outside of the employment. For example, a grocery store worker who becomes infected might be able to show by clear and convincing evidence that her exposure occurred at work where, a) there is a known outbreak at the store, and b) due to the stay-at-home order, the worker had no other possible exposures. Similarly, if a claimant was able to show that his or her employer failed to adhere to social distancing recommendations and sanitation practices, and/or OSHA guidelines the likelihood of the claimant meeting the necessary burden of proof might also increase.
A workplace outbreak combined with a lack of possible outside exposures due to the stay-at-home restrictions and social distancing may create a factual scenario where workers’ compensation liability is possible. In an effort to safeguard workers and mitigate against workers compensation risks, employers should make every effort to follow social distancing recommendations, enhanced sanitizing practices, and other appropriate workplace guidance.
