Guidance on a Washington Workers’ Compensation Occupational Disease in a Post-COVID (Presumption) Era
The Washington Department of Labor & Industries lifted its COVID coverage presumption on April 11, 2023. Under the presumption, frontline workers who tested positive for COVID-19 between February 29, 2020 and April 11, 2023 were automatically considered to have contracted the disease at work and the burden was placed on employers to rebut the presumption by showing that the worker more likely contracted the disease from nonemployment activities. Since the presumption has lifted, workers are still entitled to file COVID-19 claims, but they are evaluated under the usual occupational disease criteria.
Generally, infectious disease is considered unrelated to the distinctive conditions of employment and therefore does not qualify as an occupational disease. This was established in a 2017 Court of Appeals case in which a worker contracted spinal meningitis from a coworker but was not found to have suffered an occupational disease because nothing about his slaughterhouse work increased the odds that he might get spinal meningitis.
However, In re Shannon Bean, BIIA Dec., 21 18503 departs from the traditional treatment of infectious disease. Ms. Bean was working as a flight attendant when she contracted COVID-19 after working on a flight with a passenger who later tested positive for the disease. Although she testified that she had not worked in close contact with the passenger and evidence was presented that she had taken a flight for personal travel five days prior to the flight, the Board found that she suffered from an occupational disease.
The full Board wrote that because Ms. Bean was confined to the cabin of an airplane and shared recirculated air with numerous passengers, she was in greater direct contact with the COVID-19 virus than the general population. Additionally, the Board found that the employer’s requirement that flight attendants wear masks, even in absence of a federal mandate, did not mitigate the increased exposure. They did not comment on the dissent’s observation that she may have been more likely to contract COVID-19 on her personal flight as she was confined to a single spot with other passengers of unknown COVID-19 status.
This case lays a foundation for workers to bring COVID-19 claims in a post-pandemic landscape, but it also offers some potential areas of mitigation for employers outside the airline industry. Ventilating work areas with fresh air and continuing measures which distance employees from outside customers will help differentiate from this case if a COVID-19 claim should arise. Although a masking requirement may not provide any legal relief under In re Shannon Bean, it may limit the potential for occupational disease claims through reduction of transmission.
As we come up on the anniversary of the end of the COVID-19 presumption, it is also worth noting that occupational disease claims are valid for up to two years after exposure, unlike industrial injuries which can only be filed through the first year following the incident. If you have any questions about COVID-19 claims subject to presumption or occupational disease rules, please contact me at 503-595-6103 or .
Posted by Madeline Mahugh.
