Your shop superintendent calls in sick today and says he has the H1N1 flu virus. He indicates he caught it from the shop machinist or others who have been out several days with the virus, that he should be getting work comp benefits. Sounds logical, so what do you tell him?
According to Chris Boggs in his LexisNexis post, Is H1N1 Compensable Under Workers Compensation?, injury must arise out of an illness or disease that is peculiar to the work. Hearing loss as a result of years of working on a printing press or respiratory complications due to industrial chemical exposure are clearly occupational.
Since H1N1 can easily be contracted in a grocery store or simply at home it does not qualify as a disease that has exposure that is unique to a work environment. Now at this point, you might think this is contradictory to some work related accident injuries. You can injure your back while lifting a box as a warehouse employee as easily as you can taking out the garbage at home. Since it is not an injury that is unique to the workplace is it not covered by workers compensation?
The distinction here is that the injury occurred at a specific time and place (while working). It is normally the result of a specific event that can be attributed to the injury, lifting the box. In this example it may be difficult to disprove the injury is work related since the manifestation of the injury may not be immediate. All too often employers are forced to pay for soft tissue injuries that have no work related origin. How do you prove the back strain occurred lifting the garbage can on the weekend vs. last Friday in the warehouse?
This type of uncertainty as to the origin and the cause is one of the reasons industrial commissions and courts tread very cautiously in determining whether a disease is occupational. Over the years certain illnesses, such as Asbestosis, have been directly linked to the industries that use asbestos in their manufacturing process. The CDC records a doubling of the death rate from this over the past 20 years. Other areas, such as exposure to chemical fumes or dust that can exacerbate existing respiratory ailments, may not be as clear.
Healthcare workers can be exposed to communicable diseases through contact with a patient's blood. In most jurisdictions this would be considered occupational disease. An employee who alleges that a coworker who is HIV positive infected him where there is no evidence of work related blood contact would not be covered.
The arguments regarding the compensability of certain illnesses or diseases will continue on for years to come. Litigation often results and this can change the landscape as to what is covered as a work related illness. For the time being it is best to be cautious when informing employees as to what may be covered under workers compensation. If there is doubt submit it to the insurance company and let them decide.
As for the H1N1, stock up on hand sanitizers.
