The State of Michigan is now faced with new challenges with the recent Covid-19 outbreak. In the interest of safety for its citizens, Federal, State and Local government authorities have taken actions previously not seen during many of our lifetimes. With these actions being taken, questions have been presented as to how these actions will impact employers. This article will address a couple of common questions that have been asked.
This question is significant as the initial understanding of the virus is that individuals with pre-existing conditions have a higher mortality rate when contracting this virus, which can in turn create a potential greater liability for employers. The question then becomes could this be a “work-related” issue under the Workers Compensation Act in Michigan.
The short answer is that unless someone can directly link contracting the virus to the workplace, we maintain that the position should be that it is not work-related. I am sure that there could be situations where an argument could be made that it is work-related, for instance, if we sent someone to an effected area and they contracted the virus and the only reason they contracted it was because we placed them there, or alternatively, where such a person returns from a trip or work function and their direct contact with others causes the spread of the virus. However, even in these situations, all contacts and possibilities should be looked at.
Each potential case that arises will require its own analysis and we can come up with many scenarios and fact patterns to discuss; however, the starting point in my opinion is that it is not work-related. In its simplest analysis, you can look at Section 418.401 (2)(b) that indicates in part that an ordinary disease of life to which the public is generally exposed outside of the employment is not compensable. We can address all other facts and specific scenarios from here.
To dive deeper into this topic, we can look at the following cases, considerations and provisions of the Workers Disability Compensation Act (“WDCA”):
- Section 418.401(2)(b) states: “Personal injury” includes a disease or disability that is due to causes and conditions that are characteristic of and peculiar to the business of the employer and that arises out of and in the course of the employment. An ordinary disease of life to which the public is generally exposed outside of the employment is not compensable.
- Section 418.415 provides “If an employee is disabled or dies and his disability or death is caused by a disease and the disease is due to the nature of the employment in which such employee was engaged and was contracted therein, he or his dependents shall be entitled to compensation and other benefits for his death or for his disablement, all as provided in this act.”
- A significant consideration is that the burden is on the employee to establish that the contracting of Covid-19 is “due to causes and conditions that are characteristic of and peculiar to the business of the employer.” One question before the fact finder will ultimately be whether the employee was required to be on the employers’ premises, and subsequently contracts Covid-19, is this a cause and condition that is characteristic of and peculiar to the business of the employer. In most cases, not likely.
- One case to consider is Whetro v Awkerman, 383 Mich 235 (1970). In Whetro, the employee suffered injuries in a tornado. The individuals involved were not working at the time they were injured, nor did the nature of the job particularly expose them to tornadoes. Nevertheless, their employment did require them to travel to the area where the tornado struck. The Whetro Court noted that since the work was the occasion for the injury, the workers were entitled to compensation and the Court did away with the “act of God” exception to compensable events. Significantly, the Court also rejected the requirement of proximately causal connection between the employment and the injury to entitle a claimant to compensation. The Court instead stated that the law has been brought to the point where it can be said that if the employment is the occasion of the injury, even though not the proximate cause, compensation should be paid.
- The Whetro analysis has not been strictly held in all types of cases, though. In the case of idiopathic falls, the Court has still required some causal connection to the employment. In Ledbetter v Michigan Carton Co, 74 Mich App 330 (1977), an employee had a seizure and fell on a level floor due to the seizure. The Court denied compensation stating “the sole fact that the injury occurred on the employer’s premises does not supply enough of a connection between the employment and the injury. Unless some showing can be made that the location of the fall aggravated or increased the injury, compensation benefits should be denied.” Of significance is that the Court maintained that it is the burden of the employee to establish that the employment had some causal connection to the resulting injury.
- Conversely, in Hill v Faircloth Mfg Co., 245 Mich App 710 (2001), the Court considered combined cases that involved individuals that suffered diabetic seizures while driving automobiles in the course of their employment. They suffered severe injuries as a result of the car accident, not directly from the seizures. The appellate commission denied benefits on the basis that driving is an everyday activity and the work did not increase the risk of an injury. The Court of Appeals reversed, though, holding that even common activities undertaken in the course of employment can increase the risk of an injury. The Court further stated, “because the activity required by their employment placed them in a position of increased risk or aggravated their injuries, the injuries would be compensable even if an idiopathic condition caused them to lose consciousness.” This signals that the Courts could find personal, everyday risks that cause injury compensable if the employment placed the employee in a position that increased the risk of injury. This same type of analysis is likely to take place as it relates to the Covid-19 virus. However, it should be noted that some of the above cases address injuries as opposed to occupational diseases and they are included to provide some insight as to how the Act is applied.
- In practice, should an employee contract Covid-19, the employee would need to establish that he/she contracted the virus from his/her place of employment, and that he/she did not contract it from another source. Additionally, the employee would need to establish that contracting Covid-19 was a cause or condition that is characteristic of and peculiar to the business of the employer and that it arose out of and in the course of the employment. Lastly, the Plaintiff would need to be able to provide evidence that contracting Covid-19 is not a disease to which the public is generally exposed outside of the employment, and this will be very difficult if not impossible to establish at this time.
- The most likely defense to an allegation that contracting Covid-19 was a work-related disease, would be to argue that Plaintiff Employee did not contract the virus at the employer’s place of business. Given the current lack of testing available for the virus, the 14-day incubation period, the fact that the virus can live on surfaces for up to several days, and the fact that children and adults can carry the virus and only exhibit mild symptoms or even be asymptomatic but can still spread the virus, all lead to creating a near impossible standard of proof to satisfy. (https://www.health.harvard.edu/blog/as-coronavirus-spreads-many-questions-and-some-answers-2020022719004)