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It Didn’t Happen Here – A Likely Defense to COVID-19 Workplace Claims

Published on May 24th, 2020

 

 

We all have inherent sympathy for those individuals unlucky enough to contract the often-deadly Coronavirus. It is a disease that can seemingly strike anyone at any time. As a society, we would like to see that those who are stricken are taken care of somehow.  For those who contract the disease from exposure at work, worker’s compensation benefits which provide for lost wages and medical coverage for needed treatment, should be available. However, the question is then raised as to whether it can be shown that the disease was indeed contracted at work. This is the question seized on by the employers, insurance companies and defense firms.  With the rapid spread of the disease, so the argument goes, the infection could have come from anywhere – in the subway, at church, on the flight back from vacation, at the local grocery store, in a restaurant, on the elevator – indeed almost anywhere the infected person had been in the preceding weeks. Without contact tracing, where every known contact of an infected person, is checked, it is perhaps impossible to prove where the virus was contracted. 

In the case of medical personnel working in a COVID-19 treatment ward, it might seem obvious that a doctor or nurse who becomes infected, was infected in their workplace. At the height of the outbreak in New York City in late March and early April, one hospital in Queens, at the center of the crisis at the time, was overrun with patients suffering with COVID-19.  One doctor described it this way, “It’s just like a tidal wave,” “The only beds we’ve been able to free up are people who have died.” In a hospital equipped to handle 15 – 20 critically patients at a given time, those beds were quickly filled. An additional 30 beds were fashioned and then 30 more, all filled with COVID-19 patients. Such a volume of patients descending all at once created shortages, both in terms of personnel and supplies. Doctors, nurses, and various medical support staff, had to work extended hours thereby lengthening the time they were exposed to the virus. Personal Protective Equipment (PPE) also came in to short supply. Gowns, masks and face shields are supposed to be changed regularly to limit possible further spreading of the virus through the hospital ward. Workers quickly burned through limited supplies and thereafter would have to work with PPE that may have been already tainted, or that was improvised or otherwise inadequate.  All of these conditions, made it more likely that a worker exposed to such conditions, would contract the virus.

Health care facilities treating COVID-19 patients are not the only workplaces that see a higher level of virus exposure.  There is a developing crisis in the meat packing industry. According to the Centers for Disease Control and Prevention (CDC), nearly 5,000 plant workers in 19 states had tested positive for the virus as of April 27. In Iowa and South Dakota, close to a fifth of the workforce in the states’ largest slaughterhouses had fallen ill. Large Covid-19 clusters have also appeared in meatpacking plants around the world, including Canada, Spain, Ireland, Brazil, and Australia. “One, two, or three meatpacking plants—fine, you might expect that. But these outbreaks are clearly a worldwide phenomenon,” says Nicholas Christakis, head of the Human Nature Lab at Yale. “To me, that’s evidence that there’s something distinctive about meatpacking that’s adding to people’s risks of catching Covid-19.” According to the CDC, factors potentially affecting risk for infection include difficulties with workplace physical distancing and hygiene and crowded living and transportation conditions. In a recent CDC report, the chief risk to meatpackers was identified as the prolonged close proximity to other workers. The fast pace of the production line has workers moving quickly and breathing heavily, making it difficult to keep face masks properly in place. 

 

Prisons are another example of more intense exposure to the virus. Workers in these facilities also face a greater incidence of COVID-19. In Federal prisons which tend to be less crowded than state prisons, the Bureau of Prisons (BOP) reported as of May 15 that there are 2296 federal inmates and 275 BOP staff who have confirmed positive test results for COVID-19 nationwide. That figure though may not accurately reflect the actual number of cases.  The BOP acknowledged that 70% of the inmates who were actually tested for the virus, tested positive. In many state prisons, the situation is even worse. In late April, the Marion Correctional Facility in Ohio became the largest reported source of virus infections of any prison in the country. There, 2011 inmates, about 80 percent of the prison’s population, had tested positive. In addition, 154 members of the 350-person staff also tested positive.

Employers in these industries will find it difficult to deny that COVID-19 positive employees contracted the disease at work.  However, without the degree of prevalence of the virus found in the health care, meat-packing and corrections industries, workers in other fields will likely have their employer telling them that “it did not happen here.” Because of this, it is in your best interest to work with an experienced workers compensation lawyer in Buffalo, NY.

 

Thanks to Hurwitz, Whitcher & Molloy – Attorneys at Law for their insight into workers comp claims and COVID-19.

 

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