Workers' Compensation: Over 46% of High-risk Adults Are Endangered by Workplace Exposures to SARA-CoV2

A recent study published in The Journal of the American Medical Association (JAMA) this week finds that workplace-exposures to SARS-CoV2 endanger, not only the workers but also imperil the lives of their household contacts.

This fact becomes even more important as “essential workers” are usually not able to work remotely from home [WAH]. They are front line workers at high risk and will bring the disease home to household contacts. This mirrors what happened to asbestos workers and their household contacts. The asbestos workers brought the fiber home on their clothes, and exposed the people who lived with them.

“Between 56.7 and 74.3 million increased-risk US adults lived with or were themselves essential workers who could not WAH. These estimates were driven by 3 factors:

First, 49.7% to 61.0% of all adults were at increased risk of severe COVID-19 if infected with SARS-CoV-2 (depending on the CDC definition used).
Second, 71.5% of workers held essential jobs, and many were unable to WAH.
Third, we measured not only the number of adults with increased risk who were essential workers and unable to WAH, but also the many increased-risk adults living with such workers.

“One limitation is that the study’s prepandemic data do not reflect current employment levels, changes in ability to WAH, or local infection rates. Additionally, risk factors were reported by MEPS [Medical Expenditure Panel Participants]participants rather than measured by medical professionals, likely causing an underestimate of risk. Policy makers seeking to make efficient and equitable decisions about reopening the economy and about vaccine distribution should consider the health risks not only of workers, but also of those with whom they live.”

The workers’ compensation “Exclusivity Rule,” limiting a workers’ remedy against an employer to statutory and scheduled, workers’ compensation benefits, did not hold true in many asbestos liability claims. Millison v. E.I. du Pont de Nemours & Company, 101 N.J. 161, 501 A.2d 505 (1985), appeal after remand 226 N.J.Super. 572, 545 A.2d 213 (App.Div.1988), certif. granted 113 N.J. 377, 550 A.2d 480 (1988).

Although employees are limited to workers' compensation benefits for any initial occupational disease and disability related to occupational exposure, the Workers' Compensation Act does not bar a cause of action for aggravation of such illness or disease resulting from the employers' and company physicians' fraudulent concealment of already discovered disabilities. Injured workers’ were able to demonstrate gross negligence or an an intentional action by the employer that permitted the “Exclusivity Rule” to be circumvented and the civil actions against the employer moved forward. Certainly, the household contacts, may also have a claims that can be pursued in civil actions against their employers.

The COVID Pandemic is rapidly spreading. The US CDC today reports 10.04 million total cases and 237,731 deaths. A cumulative incidence of 10 million cases corresponds to approximately 3% of the entire US population.

The potential economic consequences and the challenge to employers is enormous. Employers need to keep their workplaces safe, and seek the best advice available to safeguard the workplace.

See: Selden TM, Berdahl TA. Risk of Severe COVID-19 Among Workers and Their Household Members. JAMA Intern Med. Published online November 09, 2020. doi:10.1001/jamainternmed.2020.6249

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