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Ebola and workers' compensation

In a recent article in Insurance Journal, "Is Ebola covered by Workers' Compensation," Christopher Boggs points out that two tests must be satisfied before an illness or disease can be considered occupational and thus compensable under workers' compensation. First, the illness or disease must arise out of the course and scope of employment and second it must arise out of or be caused by conditions "peculiar" to the work.

While it's important to note that each case is judged on its own merits and encompassing circumstances, Mr. Boggs suggests that Ebola is not likely to be a workers' comp exposure for most industries, with the exception of the healthcare industry. He states, "Unless it can be proven that the employee has an increased risk of contracting Ebola because of a peculiarity of his job, this virus is not occupational. Employees working in the healthcare industry may be able to prove such increased risk as they have little choice but expose themselves to the bacteria as a regular part of their job duties. Beyond healthcare workers, not many employments will qualify for workers' compensation protection due to Ebola."

While a review of articles suggests that many insurance experts agree with Mr. Boggs, there are some that argue the impact could be much wider than the healthcare industry. Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers' Compensation eNewsletter, postures that Ebola is not an occupational disease because it occurs predominantly in a geographical area, not predominantly in one industry, such as black lung in the coal industry, and it's onset is sudden, not contracted over an extended period of time like most occupational diseases.

In the article, Employers Who Treat Ebola as an Occupational Disease Do So at Their Own Peril, he states, "I suggest that because Ebola is not an occupational disease, an infected claimant need not establish that his or her risk of contracting the horrific condition is 'peculiar' to the employment, but rather that the claimant must prove the work connectedness of the disease (the standard AOE/COE formula) [see Larson's Workers' Compensation Law, §§ 5.05, 51.01 et seq.]. To do so in many states, the employee need not show that he or she faced any sort of increased risk of disease; they may recover if they can show that they faced an actual risk." Citing several cases relating to diseases/conditions such as mumps, polio, valley fever and tuberculosis, he notes that where there is a clear causal connection between the Ebola virus and the workplace, a worker may likely establish a compensable claim.

Others suggest that increased exposure due to business-related travel or the endemic disease coverage under the foreign voluntary extension of a workers' comp policy may trigger coverage for other groups of employees. Also, potential policy exclusions include serious and willful misconduct and failure to comply with health and safety laws or regulations.

While there is disagreement on how claims will be treated, there seems to be a consensus that the number of claims will be small. Strengthened protocols should be effective in keeping the risks low, but the high costs associated with caring for patients in quarantine mean that the impact on workers' comp could be significant for any single entity.