A Peculiar Risk

Mark Webb
Mark Webb

On May 19th, the United States Department of Labor issued its Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19). The Guidance goes into detail on how OSHA Compliance Safety and Health Officers (CSHOs) should assess an employer’s efforts to determine work-relatedness of the disease for purposes of recording of occupational illnesses.  In its discussion of evidence that a COVID-19 illness was contracted at work, the Guidance offers six examples to help a CSHO determine work-relatedness. OSHA cautions, however, that work-relatedness, “cannot be reduced to a ready formula.”

The Guidance then states, “If, after the reasonable and good faith inquiry described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.” In other words, the Guidance is directed to CSHOs, not employers. It is for the limited purpose of determining work-relatedness for reporting purposes and not for any other purpose – including whether a work-related COVID-19 illness is a compensable injury for workers’ compensation purposes.

The recent OSHA Guidance echoes current regulations from Cal/OSHA, which state that if an illness is the common cold or flu it is not considered work-related and therefore is not recordable by the employer. However, as set forth in 8 CCR § 14300.5(b)(2)(H), “…contagious diseases such as tuberculosis, brucellosis, hepatitis A, or plague are considered work-related if the employee is infected at work.” This regulation was last amended in 2002. The list of contagions is not exclusive.

To reinforce the limited scope of the work-relatedness regulations under California’s occupational safety and health laws, it is made expressly clear that, “(r)ecording a work-related injury, illness, or fatality does not mean that the employer or employee was at fault, that a Cal/OSHA regulation has been violated, or that the employee is eligible for workers’ compensation or other benefits.”  (8 CCR § 14300)

There is a furious debate going on in Sacramento – and across the nation – over the issue of presumption of compensability of COVID-19. This debate intensified with Governor Gavin Newsom’s Executive Order N-62-20, signed on May 6. The Order creates a rebuttable presumption of compensability for any worker not subject to the Governor’s stay home Executive Order, is retroactive to the date of the stay home order, March 19, 2020, and its presumption ends on July 5. The Order also requires workers to exhaust COVID-19 specific supplemental sick leave benefits before collecting temporary disability. The Legislature is currently debating several presumption bills, including Senate Bill 1159 (Hill and Daly).

The concern expressed by employers and insurers is that a presumption will turn COVID-19 in all cases into workers’ compensation claims, even when the exposure of a particular worker may be no greater than that of the general population. But it is equally dangerous to suggest that no COVID-19 claims should be compensable. As recent research from the California Workers’ Compensation Institute (CWCI) demonstrates, payers are already accepting, denying, and investigating claims of occupational COVID-19 much along the lines of the Governor’s Executive Order. As well they should.

That leads us to the case of the late Ernest F. Slattery.  Mr. Slattery worked in a hospital, where he contracted the flu. He died from the disease. The question was whether his death could be considered compensable. In agreeing that it was, the California Supreme Court stated, “…the actual fact is that of persons exposed as was Slattery, the proportion of those attacked was from five to eight times as great as the proportion of those not so exposed.”

Thus began the “peculiar risk” doctrine that has guided the determination of whether a disease arises out of and in the course of employment ever since. Mr. Slattery died from the Spanish Influenza on October 23, 1918. The Court’s decision was entered on June 30, 1920. Yes, 100 years ago.

While there is a degree of separation between safety laws and workers’ compensation requirements, there is not an unscalable wall between the two.

The debate over presumptions will be more enlightened if all engaged would acknowledge that employers are being provided guidance by OSHA on how to maintain a safe workplace in response to COVID-19 and how to recognize when a COVID-19 illness of an employee might be work-related.  California’s workers’ compensation system recognizes that there will be illnesses arising out of and in the course of employment when the worker has a greater risk of contracting the disease than would the general population – a standard in existence for almost a century.

Protecting workers from injury or illness, and compensating them when injury or illness is work-related, is the Grand Bargain as embodied in the Insurance and Safety Act as approved by California voters in 1918. The system is responding to the challenge of COVID-19, and it should be allowed to continue.


Note: Mark Webb is owner of Proposition 23 Advisors, a consulting firm specializing in workers’ compensation best practices and governance, risk and compliance (GRC) programs for businesses.