CORONAVIRUS DISEASE (COVID-19) AND FILING FOR WORKERS’ COMPENSATION BENEFITS IN NEW YORK

(Updated January 21, 2021)

Dear Friends and Clients,

Our firm is dedicated to providing you with support and guidance during this unprecedented time. We understand that there are many questions and concerns regarding workers’ compensation in reference to COVID-19. Since the outbreak of the pandemic, we have provided updates regarding the state of the Workers’ Compensation Law as it has evolved. See below for changes that have occurred since our last update. Remember, the Board’s or court’s opinions may change in the next few months or years. In addition, each case depends on its own specific set of facts.

The Board has rendered a decision that provides the following guidance in how COVID-19 cases are to be evaluated:

  1. These cases will be considered as “accidents” as opposed to “occupational diseases”.
  2. It is NOT necessary for the medical opinion regarding causal relationship be 100% certain. It is permissible to provide lay testimony along with a medical opinion regarding the prevalence of COVID-19 at the workplace.
  3. Recognizing that it can be difficult to prove that a worker contracted COVID-19 from work, the Board set forth a standard regarding the level of evidence needed to have the case established. The worker must show that COVID-19 was “prevalent” in the workplace. There must be evidence of significantly elevated hazards of exposure that are endemic to or in the workplace which demonstrates that the level of exposure is “EXTRAORDINARY”. The nature and extent of work activities must include SIGNIFICANT contact with the public and/or co-workers in an area where COVID-19 is prevalent.

Keep in mind:

  1. Being exposed to the coronavirus is may be sufficient to establish a claim.
  2. A medical report providing a diagnosis of COVID-19 is NOT necessary. Providing a positive test result or a medical report listing your symptoms may be sufficient.
  3. If you have contracted COVID-19, your case can be established if you can show either a direct exposure or that there are significantly elevated hazards of exposure at the workplace.
  4. If you are claiming a direct exposure, you must be able to provide information regarding the details of the exposure such as location and date.
  5. In a claim for an accident, you have 30 days from the exposure to notify your employer. This 30-day requirement may be waived if your employer was not prejudiced by the lack of timely notice.
  6. You must file a claim with the NYS Workers’ Compensation Board within 2 years of the date of accident.
  7. You may be entitled to other benefits provided under Federal or New York State laws for loss of salary or sick time.
  8. This information is based upon the current state of the law and is subject to change and depends on the exact circumstances of each employee.

FAQs Regarding Workers’ Compensation & the Coronavirus Disease (COVID -19)

(Updated January 21, 2021)

1. If a worker is diagnosed with COVID-19, can they file for workers’ compensation benefits?

Yes. Employees who contracted COVID-19 at work can file a claim.

2. Can a worker file a claim if they have been exposed to COVID-19 at work but have not been diagnosed?

Yes. A worker can file a claim without a diagnosis, but these cases will be more difficult to establish. A positive COVID-19 test result or medical report detailing the symptoms makes for a stronger case. They must also prove a direct exposure at work or a prevalence of positive cases at the workplace.

3. Is it a compensable case if a worker at a hospital was in contact with COVID-19 patients and then tests positive for COVID-19?

Yes. In that situation, the worker should be able to prove that the coronavirus was prevalent in the workplace.

4. If a telecommunications equipment installer contracts COVID-19 as a result of performing work, is this considered a workplace accident?

Yes. Generally, any worker exposed to the coronavirus in the course of their employment has a claim for an accident. The worker has 30 days from the exposure to notify their employer.

5. If a worker only has a positive test, would this be sufficient to file a claim?

Yes, but they must be able to prove that COVID-19 was contracted resulting from their work activities by either showing a direct exposure or prevalence of positive cases.

6. If a worker suspects they have contracted COVID-19, what should they do to file for workers’ compensation?

A claim must be filed with the NYS Workers’ Compensation Board within two years of the date of accident or in the case of an occupational disease, two years from the day they knew or should have known the condition was work-related. The worker should keep a record of the details of the exposure, such as dates and locations. The worker must also notify their employer within 30 days of the accident or two years in the case of an occupational disease.

7. Under the Workers’ Compensation Law, what kind of benefits are workers who are diagnosed with the coronavirus entitled to?

Medical benefits and a wage replacement benefit that is up to 2/3 of their average weekly wage. However, the appropriate statutory maximums will apply regarding the wage replacement benefit.

Attorney Advertising: The information presented is intended to help you understand your rights, it is not intended to provide legal advice. Prepared 4/2/2020 by Vincent Rossillo, Esq. Updated: 1/21/21.