With New York State in Phase 4 of reopening and the school year underway, hundreds of thousands of people are gradually returning to work. Many are naturally concerned about what might happen if they contract COVID-19 at work, and what compensation would they be entitled to in such a case.
In New York, the primary source of financial compensation for employees injured at work is Workers’ Compensation. This also applies to any illness contracted on the job. Specifically, the Workers’ Compensation Board (WCB) announced that employees who contract COVID-19 due to their employment are eligible for compensation.
What most people aren’t aware of is that, in New York State, an employee generally cannot bring legal action against an employer for injuries or illnesses that occurred during the course of employment, no matter how grievous. An employee’s only recourse for injuries sustained on the job is to pursue a claim through Workers’ Compensation.
The exception to this is if the injuries or illnesses were caused by someone other than the employer, in which case legal action can be brought against that party. In the case of illness, though, identifying a responsible third party is difficult.
Also important to note is that, unlike a personal injury lawsuit, Workers’ Comp only covers medical expenses and a percentage of the salary (about 2/3 of the average weekly salary from the previous year, times the percentage of the deemed disability). Workers’ Compensation does not pay for pain and suffering—which in the case of a COVID-19 infection may be significant. (Similarly, beneficiaries of an employee who died as a result can only bring suit through Workers’ Compensation.)
In the case of COVID-19, however, the issue is burden of proof. To be eligible for Workers’ Compensation benefits, an employee must be able to demonstrate that they contracted the virus at work (including offsite “on the clock” activity). For that, they need to either establish the specific source of their infection, which is near-impossible, or show that their job exposed them to an elevated risk of exposure, which is a more likely path.
To show an elevated risk of exposure an employee needs to explain their work environment, location, duties, schedule and, if applicable, interactions with the public. They would also need to obtain a report from a WCB-authorized medical provider stating that their illness is resultant from their work.
If you have been positively diagnosed for COVID-19, it’s important that you do the following:
- Notify your employer as soon as possible, by writing or email (not text message), so your employer can notify their insurance carrier of the potential claim.
- Fill out Form C-3 and submit it to the WCB. The Board also provides a list of approved doctors who can verify your illness as work-related.
- Send or have your doctor send your test result to the WCB as soon as possible.
Taking care of every step quickly is vital to getting your benefits quickly.
Of course, even with everything done correctly, the employer’s insurance may still deny the claim. In such a case, the WCB will determine the validity of the claim based on the employee’s and medical provider’s testimonies.
Further information regarding the New York State Workers’ Compensation Board’s response to COVID-19 can be found here. If you have any questions or require assistance, contact us.
