Labour's Lost

With apologies to the Bard: When it comes to potential COVID-19 exposure on the job, and the attendant workers’-compensation claims, to pay or not to pay? That is the question.

Workers' Compensation For Employees With COVI

Alan S. Pierce

July 8, 2021 06:00 AM

This article was originally published in our 2021 Employment Law Issue.

The answer to that question—to pay or not to pay?— regarding the availability of workers’ compensation to those who may have contracted COVID-19 in the workplace is, well . . . it depends.

Cases paid without contest so far have generally been those involving medical personnel on the frontlines early in the pandemic; ICU workers; and physicians, nurses, or nursing-home aides in contact with dozens or even hundreds of COVID-19 patients for hours every day.

The larger issue, of course, concerns the many thousands of other workers who dealt with the public (and their colleagues) in mid- to late 2020 who may have contracted the coronavirus from their exposure. Are they also covered by workers’ comp?

The place to begin any such analysis is to look at the law of the jurisdiction in question. Each state has its own statutory provisions governing workers’ comp for the victims of disease, as well as programs such as the Federal Employees’ Compensation Act, Longshore and Harbor Workers’ Act, and others.

COVID-19 as an Occupational Disease

“The sickness doth infect the very lifeblood of our enterprise.”


Many jurisdictions distinguish between a workers’ compensation claim as the result of an injury and an occupational disease per se. One must pay attention to whether a given jurisdiction makes such a distinction, and what would qualify as an “occupational disease.” At first blush, a pandemic causing exposure in the workplace would certainly seem to qualify, and from a purely medical standpoint that might be so. Yet the term occupational disease has highly specific meanings in different jurisdictions.

Several states, such as Alabama, Florida, and Georgia, define the term generally. Many jurisdictions use the word injury to refer to work-related disease exposure; still others— Montana and Pennsylvania among them—have entirely separate statutory provisions for occupational diseases. Broadly speaking, for a disease to be considered occupational, it must be specific to a particular trade or occupation—that is, not an ordinary disease of life to which the public is equally exposed independent of employment— and a causal relationship must exist between the disease and the work.

Broadly speaking, for a disease to be considered occupational, it must be specific to a particular trade or occupation.”

In Goldberg v. 954 March Corp. (1938), the State of New York Court of Appeals defined an occupation disease as: One which results from the nature of employment, and by nature is meant, not those conditions brought about by the failure of the employer to provide a safe place to work, but conditions to which all employees of a class or subject, in which produced the disease as a natural incident of a particular occupation, and attached to that occupation, a hazard which distinguishes it from the usual run of occupations and is in excess of a hazard attending employment in general.

Statutory Exclusions or Defenses

“He shall not breathe infection in this air.”


One must also look at other statutory exclusions or defenses for infectious or contagious diseases. Massachusetts law holds that:

“Personal Injury” includes infectious or contagious diseases if the nature of the employment is such that the hazard of contracting such diseases by the employee is inherent in the employment.

The phrase inherent in the employment has generally been confined to health-care facilities such as hospitals, nursing homes, and physicians’ offices where staff would be exposed to patients with an array of contagious or infectious conditions. Retail cashiers, warehouse employees, assembly line workers, and office workers who might have contracted a cold, the flu, or pneumonia as a result of exposure to the public or a coworker (in a setting in which disease is not inherent in the employment) would be precluded from workers’- compensation benefits according to the Massachusetts statute.

Very few coronavirus cases have been litigated, so there is no body of available case law—or, for that matter, anecdotal evidence—regarding whether essential workers who contracted COVID-19 in 2020 might successfully argue that the risk of contracting it was “inherent in the employment.”

Burden of Proof

“Ay, to the proof, as mountains are for winds, that shakes not, though they blow perpetually.”


In most jurisdictions, a claimant must establish, by a preponderance of the evidence, medical causation for a workers’-compensation claim based on a disease. An article by Rutgers Law Professor Emeritus John F. Burton Jr, “COVID-19 as an Occupational Disease: The Challenge for Workers’ Compensation,” which appeared in the January 2021 Special Edition of the Workers’ First Watch Journal, a publication of the Workers’ Injury Law & Advocacy Group (WILG), observed that the disease is highly contagious, there’s a lag between exposure and onset of symptoms, and that because an infected but asymptomatic person can spread it, the cause or source of someone’s COVID-19 infection can be difficult or impossible to determine

As in any toxic-exposure case prior to the pandemic, an argument could be successfully maintained by, first, establishing the nature and conditions of the workplace (especially the surrounding environment) and the availability of safety-data materials, air-quality measurements, and the facts of a claimant’s exposure within the workplace versus potential exposure without. Fact-gathering should also determine the availability, or lack thereof, of personal protective equipment.

The cause or source of someone’s COVID-19 infection can be difficult or impossible to determine.”

The next step is to identify and establish any preexisting conditions that might account for none, some, or all of the claimant’s complaints, together with a medical opinion that there is, more likely than not, a causal relationship between the identified toxic exposure in the workplace and the development of the disease.

COVID-19 cases will be extremely fact dependent and unique to the claimant, and inconsistent awards or decisions among various jurisdictions (or even within an individual jurisdiction) are likely given the variables of a given case and the quantum of medical evidence either to support or rebut a claim of work-related COVID-19 exposure.

Importantly, the claimants ’ standard to prevail in a workers’- comp case in most jurisdictions is to prove their case by the civil standard of a preponderance of the evidence. Any medical opinion that a causal connection between exposure and disease is more probable than not must be stated with a reasonable degree of medical certainty, but the opinion itself must hold simply that the connection is more likely than not. Again, the standards of the jurisdiction matter: Preponderance is a much easier hurdle to clear than medical certainty.

Labors Lost Employment Law Inline Photo


“Thy son I kill’d for his presumption.”


Regarding the broad topic of the compensability of COVID-19 claims, there were efforts in many jurisdictions by legislative, executive or administrative action to enact presumptions—a well-established concept in workers’ compensation and, indeed, the law in general.

The purpose would be to establish that COVID-19 is a compensable disease. Presumptions operate as rules of evidence that call for a certain result in a case unless the other party can overcome the presumption with additional evidence. A presumption can therefore be said to shift the burden, or “production,” of evidence, or the burden of persuasion, to the party seeking to overcome the presumption.

There are both rebuttable presumptions and conclusive presumptions. Pennsylvania Judge David B. Torrey, a frequent commentator on workers’ compensation, and University of Wyoming Law School Professor Michael Duff, addressed this in the WILG article mentioned above. Judge Torrey noted that a rebuttable presumption is one that, once an insurer can produce an expert medical opinion contrary to the causation presumption—that is, medical evidence showing that COVID-19 was not work related—the presumption would simply disappear, a scenario some have referred to as the “bursting bubble.” This doesn’t mean that the employee would perforce lose the case, but the burden of production would shift back to the claimant, who would then have to satisfy the same criteria as if no rebuttal presumption existed to begin with.

Duff explains that a more useful presumption for claimants would be one that creates positive evidence of causation; the burden of proving the work did not cause the disease would then shift to the employer. The most familiar source of presumptions to workers’-comp practitioners prior to COVID-19 were cancer presumptions regarding firefighters.

Professor Arthur Larson, in his treatise Law of Workers’ Compensation (Mathew Bender: 1952), notes that in connection with the firefighter disease presumptions, one must measure how much evidence would be required to rebut or overcome the presumption, adding that “the possible grounds for rebutting the presumption varies so widely that the end product varies from a virtually irrebuttable to a virtually worthless presumption.”

The burden of proving the work did not cause the disease would then shift to the employer.”

At the time of this article, the following states had created presumptions of compensability by administrative action or executive order: Connecticut, Florida, Kentucky, Michigan, Missouri, New Hampshire, and North Dakota. States that have adopted presumptions via legislation are Alaska, California, Illinois, Minnesota, New Jersey, Utah, Vermont, Wisconsin, and Wyoming. The question is to whom these presumptions apply. For the most part, they seem to apply to first responders and other medical personnel. Some states have extended coverage to funeral directors and funeral home workers, police officers and the like.

Establishing Causation

“Find out the cause of this effect.”


The general approach for connecting COVID-19 exposure to work would be similar to that of categorizing any occupational disease as a work-related condition. The first step would be to establish the diagnosis, which would also include the timeline from the point of workplace exposure to the onset of symptoms (with COVID-19, anywhere from three days to two weeks). The physician would then try to document the intensity and duration of the work[1]related exposure, comparing it to a potential non-workplace exposure. The length and dose of exposure are connected; the dose concerns the degree to which the exposed person has inhaled, or ingested a given toxic agent.

Once a diagnosis is made and a timeline determined, an assessment of workplace risk should follow. One would look to the worker ’s contact with any potential infectious sources—the general public, patients, customers, or coworkers—as well as ascertain where clusters or outbreaks have been reported in scientific literature or by municipal, county, or state health agencies. (Clusters or outbreaks in particular workplaces are important as well.) Many state agencies—as well as the federal government, through OSHA—may require reporting of COVID-19 cases among employees to the relevant state or federal departments.

Next comes an assessment of specific work practices in the 14-day period that preceded an onset of symptoms or the diagnosis. How physically close was a patient or claimant to others during work? How often during a normal workday might the individual have been within six feet of others, and how long did those interactions last? One should assess the non-workplace risk for the two weeks prior to the onset of symptoms or the diagnosis as well. When all this is complete, a qualified medical expert must determine the relative importance of workplace and non-workplace risks and exposures, comparing the two carefully.


“All’s well that ends well.”

One hopes it all ends well, at any rate. Whether a healthy system of workers’ compensation among the states, with or without presumptions, is adequate to deal with the unique qualities of the COVID-19 pandemic remains an open question and will likely be the subject of a welter of scholarly medical and legal papers going forward. Our collective experience will, ideally, enable society more broadly and workers’-comp systems in particular to be better prepared to deal with the economic consequences of potential work-related pandemic exposure in the years ahead.

Alan Pierce practices Workers’ Compensation law at the firm Pierce, Pierce & Napolitano in Salem, Massachusetts, where their practice concentrates on the representation of injured workers and their families. Alan is past president of both the Massachusetts Academy of Trial Attorneys and the national Workers Law and Advocacy Group (WILG) from whom he will receive their Lifetime Achievement Award in 2021. He is a Fellow of the College of Workers’ Compensation Lawyers and has recently been elected as its Vice President. He is a member of the National Academy of Social Insurance and has been a featured speaker or panelist at over 150 seminars and legal education programs. Since 2005, his podcast Workers’ Comp Matters on the Legal Talk Network has produced over 100 programs on various workers’ compensation topics. He is Executive Editor of Workers First Watch and a former editor and columnist for the Journal of Workers’ Compensation. He has been recognized as a “Lawyer of the Year” in Workers’ Compensation Law – Claimants in Massachusetts by Best Lawyers® for 2016, 2019, and 2021.

Related Articles

With Reservations

by Justin Smulison

Is vaccine liability on the menu for restaurant owners in 2021?

Vaccine Liability for Restaurant Owners

What Does Workplace Harassment Look Like in 2021?

by Victoria E. Langley

The COVID-19 pandemic reshaped the U.S. workforce. But has it changed harassment on the job?

Workplace Harassment in 2021

Tales From the Crypto

by Gregory Sirico

The economic turmoil of COVID-19 has given cryptocurrency its moment in the spotlight. But are we, and more importantly our banks, ready for it?

Cryptocurrency on the Rise During COVID-19

The Employment Pandemic

by Meredith Caiafa and Sarah Greene

The pandemic has had far-reaching effects on employment law since it officially took hold in 2020, but the litigation and lawmaking surrounding it are mutating faster than the variants. Here’s how lawmakers and businesses can keep up.

Employment Law During COVID-19

Measuring Success by Results

by John Fields

Recognized Best Lawyers®* recipient Joseph F. Brophy on how his Firm determines success.

Measuring Firm Success

"Lawyer of the Year"

Texas "Lawyer of the Year" 2022

Charla Truett

Immigration Law

Dallas/Fort Worth, TX


Hybrid Work: Coping with Compliance Consequences

by Gregory Sirico

Communications platforms like Webex by Cisco, Zoom and Microsoft Teams are more popular than ever in the age of hybrid work, but are firms risking compliance for convenience?

Compliances Issues with Hybrid Work

Changes and Challenges

by Megan Norris

As the pandemic ebbs and many people return to the office, midsize law firms in particular must navigate a host of unprecedented questions about costs, culture and client expectations.

Changes, Challenges and Cost of the Pandemic

Forging Bonds, Building Business

by Crystal L. Howard and Lizl Leonardo

As disorienting and occasionally frightening as the pandemic has been, it has also forced lawyers to find innovative new ways to stay connected and do business.

Pandemic Sparks Innovative Ways of Conducting

Staunch Competition

by Andrea E. Nieto, Catherine H. Molloy and Jennifer W. Corinis

On the other side of the pandemic, after record numbers of employee resignation, protecting trade secrets is both challenging and being challenged.

Protecting Trade Secrets During Period of Res

Employment Entanglements

by Justin Smulison

As the United States approaches its third summer against the backdrop of the coronavirus, employers and employees still find themselves in a Gordian Knot of interconnected labor and employment challenges, with no clear way to untangle them all.

Post-Pandemic Employment Challenges Persist

Legal Trends in the Modern Workplace

by Emma R. Schuering and Meghan H. Hanson

Employees are reevaluating their jobs and the workforce, including issues like pay equity, forced arbitration, paid time off, discrimination and other such policies as they continue to navigate a post-pandemic work life.

Legal Trends In the Workplace Post-Pandemic

Courtroom Mastery

by Justin Smulison

Victor H. Pribanic recalled the excitement of returning to the courtroom in late 2021 for a medical negligence case that could help set a new course for Pribanic & Pribanic’s trial advocacy.

Victor H. Pribanic Makes Return to Courtroom

Think Globally, Act Safely

by Michael Winkleman

As the pandemic (fitfully) recedes at last, is it once again safe to travel internationally? It is—if you take a few common-sense steps ahead of time.

International & Cruise Travel After COVID-19

There’s Hope for the Canadian Real Estate Market Post COVID-19

by Steven Tulman

Clover Mortgage offers advice and predictions on the Toronto real estate market as we move on post-pandemic.

Canadian Real Estate Market Post COVID-19

Newly Launched COVID-19 Litigation Project Offers Open Access To Pandemic-Related Court Judgments From Over 70 Countries

by Sara Collin

A worldwide database of COVID-19 cases is uniting more than 70 countries as judges, lawmakers and lawyers continue to navigate pandemic related litigation and the ways in which it’s evolving amid year three.

COVID-19 Worldwide Litigation Project

Trending Articles

The Best Lawyers in Spain™ 2023

by Best Lawyers

Announcing Spain's recognized lawyers for 2023.

Flag of Spain

Announcing the 2023 The Best Lawyers in America Honorees

by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

The Best Lawyers in Chile™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms in Chile.

White star in blue box beside white box with red box on bottom

Thirteen Years of Excellence

by Best Lawyers

For the 13th consecutive year, “Best Law Firms” has awarded the most elite and talented law firms across the country through a thorough and trusted data review process.

Red, white and blue pipes and writing on black background

The Best Lawyers in South Africa™ 2023

by Best Lawyers

Best Lawyers proudly announces lawyers recognized in South Africa for 2023.

South African flag

The 2023 Best Lawyers in Portugal™

by Best Lawyers

Announcing the elite group of lawyers recognized in Portugal for 2023.

Green and red Portuguese flag

Announcing The Best Lawyers in Peru™ 2023

by Best Lawyers

Honoring our awarded lawyers for 2023 in Peru.

Red and white stripes with green leaf symbol

The Best Lawyers in Spain™ 2022

by Best Lawyers

The results include an elite field of top lawyers and firms.

The Best Lawyers in Spain™ 2022

Best Lawyers: Ones to Watch in America for 2023

by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

Famous Songs Unprotected by Copyright Could Mean Royalties for Some

by Michael B. Fein

A guide to navigating copyright claims on famous songs.

Can I Sing "Happy Birthday" in Public?


Rewriting 𝙃𝙀𝙍𝙨𝙩𝙤𝙧𝙮 One Verdict at a Time

by Justin Smulison

Athea Trial Lawyers was formed only a year ago by several prestigious lawyers seeking justice for their clients, and together they are making history.

Six female lawyers sitting in office

Announcing the 2022 Best Lawyers® in the United States

by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

Announcing the 2023 The Best Lawyers in Canada Honorees

by Best Lawyers

The Best Lawyers in Canada™ is entering its 17th edition for 2023. We highlight the elite lawyers awarded this year.

Red map of Canada with white lines and dots

What the Courts Say About Recording in the Classroom

by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

Strength in Numbers: When Partnering Up May Be Best in Whistleblower Litigation

by Justin Smulison

Whistleblower claims make headlines when they result in multimillion-dollar settlements. But the journey to the courtroom is characterized by complexity and requires time and resources. Bienert Katzman Littrell Williams partner and The Best Lawyers in America awardee Michael R. Williams discusses when and why partnerships between counsel will strengthen whistleblower litigation.

A Blue Person in the Middle of White People

Announcing the 2022 "Best Law Firms" Rankings

by Best Lawyers

The 2022 “Best Law Firms” publication includes all “Law Firm of the Year” recipients, national and metro Tier 1 ranked firms and editorial from thought leaders in the legal industry.

The 2022 Best Law Firms Awards