Even for those who don’t work in health care—or don’t have loved ones in the field—it’s obvious that nurses, doctors, respiratory therapists, EMTs, and other frontline medical workers are particularly at risk of COVID-19 infection. That’s especially true when they’ve been forced to work without adequate personal protective equipment (PPE) like medical N95 masks, face shields, and gowns—often having to jerry-rig their own protection or reuse masks designed for single use.
It’s equally obvious that treatment and recovery are the foremost issues when you get sick with COVID-19. Unfortunately, financial troubles can soon follow—medical bills, lost income, and even a reduced ability to work and earn in the future. Can you get compensated for these losses—and if so, how? The answer will largely depend on the law in your state, including executive orders that make it easier for some frontline employees to qualify for workers’ comp during the pandemic.
As a general rule, workers’ compensation covers work-related occupational diseases—an illness that you developed because of your job. Typically, you have to prove both of the following in order to qualify for workers’ comp benefits for an infectious illness like COVID-19:
It shouldn’t be too difficult to meet the first requirement if you’re a healthcare worker or first responder with COVID-19. But in the context of a pandemic, it could be an extra burden to trace your illness to a specific patient or incident at work.
Several states have taken (or are considering) steps to lessen that burden for certain employees who acquire COVID-19 during the pandemic. Some of these changes apply to all healthcare workers and first responders, while others extend the special protection to a smaller or larger group of employees. For example:
These provisions typically apply temporarily, but their expiration dates vary considerably; California's law extends through the end of 2022.
As with everything related to the pandemic, things are changing quickly with respect to workers’ comp coverage for the disease. So if you have COVID-19 and you work in the healthcare field or emergency response, it would make sense to speak with a workers’ compensation attorney who can explain how the current rules in your state apply to your situation. You can also look for more information from the workers’ compensation agency in your state.
One of the advantages of workers’ comp is that you can get benefits relatively quickly without having to prove in court that your employer was negligent—for instance, by not taking reasonable care to make sure that you had adequate PPE when you were working with COVID-19 patients. After all, negligence could be especially difficult to prove in the context of widespread PPE shortages, when many healthcare employers struggled to obtain enough equipment despite their best efforts.
At the same time, one of the disadvantages of workers’ comp—from the employee’s perspective—is that the benefits are limited; they cover only part of your lost income, and you won’t be compensated for your pain and suffering. Also, although a few states will award additional workers’ comp benefits as a penalty for employer misconduct, you can’t seek punitive damages as part of a workers’ comp claim even if your employer’s actions were particularly egregious—say, if a nursing home actively covered up the fact that some residents had tested positive for COVID-19, while refusing to provide staff with PPE.
In most cases, you won’t be allowed to sue your employer outside of the workers’ comp system to seek compensation for all your losses if you contract COVID-19 at work (nor would your survivors usually be able to sue for wrongful death if you died as a result). That’s because workers’ comp is the “exclusive remedy” for employees’ work-related injuries, illnesses, and deaths. Most states have limited exceptions to this rule, including when the employer engaged in intentional wrongdoing—but the requirements for that exception are extraordinarily difficult to meet in many states. And in Texas, where employers aren't required to have workers' compensation insurance, you could sue your employer for negligence if it doesn't have that coverage.
In addition, several states have passed laws giving healthcare facilities (or all employers) protection from lawsuits based on exposure to COVID-19. (Learn more about when you can sue your employer for failing to protect you from COVID-19, including details on the exceptions to the exclusive-remedy rule and other legal options to address coronavirus hazards at work.)
Could Family Members Sue If Healthcare Workers Bring COVID-19 Home?
If you’ve been working on the frontlines of the COVID-19 pandemic, the fear of bringing COVID-19 home to your loved ones is one of your worst nightmares. If that happens to you, because the healthcare facility where you work didn’t provide adequate PPE or take proper precautions to protect you from exposure to the coronavirus, could your family members then sue your employer for negligence? After all, the workers’ comp exclusive-remedy rule arguably wouldn’t apply to them, because they don’t work for your employer.
In the past, some courts have found that healthcare facilities owed their employees’ family members a duty of care (an important prerequisite for a negligence claim) to minimize the spread of infectious diseases like tuberculosis and staph—and that workers’ compensation law didn’t bar lawsuits by those family members. (Padney v. MetroHealth Med. Ctr., 764 N.E.2d 492 (Ohio Ct. App. 2001); Raney v. Walter O. Moss Regional Hosp., 629 So.2d 485 (La. Ct. App. 1993); Bolieu v. Sisters of Providence in Washington, 953 P.2d 1233 (Ak. Sup. Ct. 1998).)
Of course, it’s too soon to know whether a lawsuit like this would gain any traction in the context of the COVID-19 pandemic. But if you find yourself in this awful situation, it’s worth talking to an experienced personal injury lawyer about your legal options.
While all of the handclapping, billboards, and other expressions of thanks to healthcare workers and first responders may be heartwarming, it’s not going to help you with the practical consequences of getting COVID-19 as a result of your work. To seek help with the financial consequences, you should speak with a lawyer. An attorney who’s experienced in workers’ compensation and/or employment law should be able to explain how the law currently applies to your situation (including any measures in your state to protect healthcare facilities from liability for COVID-19 infections), and how you can best seek compensation for the losses you’ve suffered.