The recent outbreak of Ebola has people from all walks of life on edge. Schools in areas where children could possibly come into contact with children who had possibly come into contact with a suspected Ebola patient were closed. Health care workers and the Centers for Disease Control (CDC) have been scrambling to develop protocols for handling infected patients. And two nurses right here in the United States became ill with the disease after treating Liberian patient Thomas Duncan, who died in Texas from Ebola in October.
What happens, then, to a health care worker or other first responder who, in the course of his or her job duties, becomes infected with Ebola through contact with an infected person? Or an airline employee who is infected by a sick passenger? Can that sick worker — who will face medical expenses, time lost from work, and other consequences — file a claim under workers’ compensation?
What does the law say?
Is Ebola an Occupational Disease?
Under the Worker’s Compensation Act, not all diseases are considered “compensable”. Those that are compensable are spelled out and include some occupational diseases that clearly can only come from the workplace. For example, such things as black lung disease, silicosis, asbestosis, etc. are covered.
However, other diseases like berylliosis, carpal tunnel syndrome, cellulitis, cubital tunnel syndrome, rhinitis, and occupational asthma may not be covered. Furthermore, there is case law to indicate that these permanently disabling conditions are not seen as compensable by the workers compensation judges who are charged with interpreting the laws and making awards of benefits.
Ebola vs. HIV in Workers’ Comp
In the days of the HIV epidemic, health care workers who were infected with that virus were able to show a specific, identifiable event which caused the exposure, for example a needle stick or coming into contact with the blood of an infected patient. However, in most cases, a worker who had a known exposure typically received prophylactic treatment, rather than experiencing any long-term disability which would have prevented them from work.
Burden of Proof
The burden of proof in workers’ comp cases is with the employee. In other words, in the case of a worker sick with Ebola, the infected worker must show his or her only exposure to the harmful virus was at work, and was not from any exposure outside of the workplace. But, in the context of this recent outbreak, an insurance defense counsel would simply have to prove the patient had traveled outside the country, visited an airport, or knows anyone who knows anyone who is or was sick with Ebola — and the shadow of doubt is cast as to the origin of the person’s illness.
So, What is an Employee To Do?
Short of becoming a hermit, there are some steps an infected worker should take.
A worker who contracts Ebola in the course of his or her job duties should collect all evidence regarding proof of exposure, including proof that the exposure could not possibly have happened outside of work. And, of course, he or she should immediately report his or her condition to job authorities and the Workers’ Compensation Commission.
The Law Must Keep Pace with Health Issues
Workplace injury and illness attorney Doug Landau believes the law needs to keep pace with evolving health issues and make a presumption in favor of health care workers, nurses, doctors, and first responders/ emergency personnel who may come into contact with potentially infected and contagious people each year, and for whom a specific exposure event would be difficult to prove.
If you or someone you know has been sickened in the course of your duties at work and there are questions as to what laws apply, email or call the Workers’ Compensation law firm Abrams Landau, Ltd. at once (703-796-9555).