Others have directed employees to work from home.
But many others must still travel to work every morning.
These people include food service retailers, hospital workers, emergency responders, utility workers, and the list goes on.
In normal times, according to the Occupational Safety and Health Administration, employers have an absolute duty to keep workplaces “free of serious recognized hazards.”
That would include known infectious diseases. But as anyone can tell, these are not normal times.
But this is not this city’s first rodeo. New Yorkers endured a number of tuberculosis outbreaks through much of the twentieth century.
Before the 1940s, no medication was available.
Doctors could only test patients, isolate them, and hope they recovered.
That sounds a lot like current coronavirus treatments, doesn’t it?
The periodic TB outbreaks spawned a number of workers’ compensation cases which could help today’s coronavirus victims obtain the benefits they deserve.
An assertive New York workers’ compensation attorney who knows the law and stands up for you greatly assists in this process.
COVID-19 spreads through airborne contact or surface contact.
A mask requirement limits the airborne spread, although it does not eliminate it.
Furthermore, coronavirus remains on cardboard, plastic, metal, and any other hard surface for up to seventy-two hours.
So, either airborne or surface contact is possible at any workplace.
In the very early days of the pandemic, before stay-at-home orders, it was difficult to establish a COVID-19 workplace connection.
People went so many places and did so many things.
Now, essential workers usually go from their homes to their jobs and back.
So, it’s much easier to establish a workplace connection.
Other illnesses are relevant here as well.
If no one else at home got sick, the workplace connection is almost conclusive.
An obscure 1949 case, Lyden v. United Hospital, might be the cornerstone of a COVID-19 workers’ compensation claim.
A New Yorker who had no prior history of tuberculosis or any similar disease became a laboratory technician in 1938. In 1949, Lyden tested positive for TB.
Even though there was no quarantine in effect and Lyden could have contracted tuberculosis from anyone in any place, the court ruled that there was a sufficient workplace connection to sustain a benefits claim.
The same conclusion could apply to a modern laboratory tech at Bellevue or a cashier in a neighborhood bodega.
Our fictional cashier’s case is even stronger because of 1968’s Lechowicz v. Albany Medical Center Hospital.
A TB ward janitor, whose duties included maintaining equipment and repairing beds, contracted the disease.
Once again, the court ruled that he had a compensable occupational disease.
Essentially, the court extended the Lyden doctrine to anyone who was at risk for contracting a known infectious disease.
Diligent surface cleaning, mask requirements, and other precautions are probably not a defense in this context.
The hospitals in Lyden and Lechowicz doubtless took extreme precautions in this area.
But in workers’ compensation cases, claimants must only show a workplace connection.
That’s different from civil court, where plaintiffs must establish facts by a preponderance of the evidence.
That being said, non-essential workers might have a hard time establishing workers’ compensation claims after officials lift the quarantine.
A line of cases, from Buckley v. Gallagher Bros. Sand & Gravel Corporation (1950) to Artiste v. Kingsbrook Jewish Medical Center (1996), indicate that the risk must be intense or connected to the person’s employment.
Occupational diseases are conditions like respiratory problems, joint pain, and environmental cancer which develop over the course of more than one shift.
Occupational disease victims are entitled to compensation for their lost wages.
Generally, workers’ compensation pays two-thirds of the average weekly wage for the duration of a temporary disability.
If the victim can return to work but must accept a lower-paying remote or isolated assignment, workers’ compensation usually pays two-thirds of the difference between the old and new salaries.
If the victim does not survive, a lump sum payout is usually available.
Workers’ compensation also pays for all reasonably necessary medical expenses.
These items include emergency care, follow-up care, prescription drugs, and medical devices. So, most job injury victims never see medical bills.
And, they are not responsible for any unpaid charges.
If you are an essential worker and you developed COVID-19, contact one of the experienced New York workers’ compensation attorneys at Napoli Shkolnik PLLC for a free legal consultation.