Under the Colorado Workers’ Compensation Act, a claimant has the burden of showing that a work injury or disease is compensable. The Workers’ Compensation Act specifically states that for a disease to be covered under Workers Compensation, it must be “fairly traced to the employment as a proximate cause” and arises out of the specific nature of the employment, not “from a hazard to which the worker would have been equally exposed outside of the employment.” Infectious diseases have generally not been found to fall into this compensable category.
Colorado has reported over 70,000 positive cases of COVID-19 between the months of March and September. The CDC also acknowledges that asymptomatic individuals can still be carriers and infect others. With that in mind, many people who have tested positive for COVID-19 are unable to pinpoint where they became infected and therefore unable to show that they contracted COVID-19 at work.
Earlier this year, Colorado lawmakers considered a change in the law that would make it easier for “essential workers” to show that transmission of the virus took place at work and should therefore be covered as a work-related disease. The bill being considered would have placed the burden of proof on the employer to show by clear and convincing evidence that the essential employee contracted the disease outside of work. This bill would have placed an enormous burden on employers, who would not only have to investigate the employee’s personal life to determine where the employee had been and if they had been exposed elsewhere, but also show this by clear and convincing evidence, a higher standard than employees currently have to show that they were indeed infected at work.
The bill ultimately did not pass, and the burden to show compensability remains the same. While the burden to show compensability remains the same, both employers and insurance carriers should remain diligent in terms of mitigating their risk related to potential COVID-19 workers compensation claims. In terms of mitigating risk, employers should adhere to CDC guidelines, implement social distancing protocols, and have contact tracing methods in place in order to be best-positioned to defend COVID-19 related workers compensation claims. COVID-19 is a communicable virus. A person may contract COVID-19 anywhere, including at home, at work, or in a public place. Therefore, COVID-19 is likely to be considered a “nonoccupational disease.” Nonetheless, sound policies and best practices related to mitigating employee risk of contracting the disease are paramount to defending COVID-19 related workers compensation claims.
Another factor for employers and insurance carriers to consider related to COVID-19 is the potential for non-COVID-19 related injuries sustained while employees are working from home. Because COVID-19 has necessitated an increase in the number of employees working from home, the exposure to “work-from-home” work-related injuries has gone up. In order to mitigate risk associated with these potential claims, employers should also be diligent about developing policies regarding best practices and communication regarding at-home workers. These best practices should include diligence related to ergonomic at-home work stations, and also keeping the lines of communication open with employees regarding their needs to work at home.
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