The H1N1 Virus: A Workers' Compensation Nightmare?

Monday, March 8, 2010 | 0

By Rebecca L. Weinberg

The H1N1 virus was one of the leading news stories of 2009.  Business owners and human resources personnel were reeling at the terrifying possibility of losing a large portion of their workforce to the virus.  Bottles of hand sanitizer sit on the desk of every employee, at the checkout counter of every store, and at the front desk at every doctor’s office.  While the H1N1 virus might not have made as much of an impact on business as anticipated, many business owners fail to realize that the virus’ immediate consequences may only be beginning.  Businesses that have experienced multiple incidences of the H1N1 influenza among employees may be at risk for workers’ compensation claims filed by those who believe they contracted the H1N1 influenza at work.

On April 26, 2009, the U.S. Department of Health & Human Services first determined the existence of a public health emergency due to confirmed cases of the H1N1 influenza.  During the next six months, the illness spread so rapidly that on Oct. 24, 2009, President Barack Obama signed a proclamation declaring the 2009 H1N1 influenza pandemic a National Emergency.  Even more frightening, the President’s Council of Advisors on Science and Technology reported that it is plausible for up to 50% of the U.S. population to be infected with the H1N1 influenza during the winter of 2009-2010.

Although it looks like the H1N1 influenza will not be as devastating as predicted, businesses in Illinois and all over the country remain vulnerable to be among the hardest hit by viruses like the H1N1 influenza.  If such a virus were to strike in full force, business operations would be affected massively as workers stay home because they are sick or because they must take care of others who are sick.  Parents would need to stay home to take care of children if schools dismiss students or childcare programs close.  The Centers for Disease Control has recommended that those with flu-like symptoms stay home for at least 24 hours after their fever is gone.  This means some workers could be out for an entire week or more, putting a strain on both the business and the worker.  The possibility that your business may have more than 50% of its workforce absent at the same time during flu season is becoming increasingly likely.

To make matters worse, employees are likely to contract a virus like the H1N1 influenza while at work.  According to the Centers for Disease Control and Prevention (CDC), the workplace often acts as a “point of spread” for illnesses, where employees can easily spread influenza to their fellow employees, as well as to members of the community.  This leads to the question: If your employee is more likely to contract a virus like H1N1 at work, can an employee infected with the H1N1 influenza file a workers’ compensation claim?

The question of whether an employee can file a workers’ compensation claim as a result of an H1N1 influenza infection has serious implications.  If the President’s Council of Advisors on Science and Technology is correct, an illness like the H1N1 influenza has the potential to infect up to 50% of your workforce.  In this event, your business would not only have to cope with huge amounts of absenteeism, but may also be faced with workers’ compensation claims by up to half of its employees.  This type of crisis is enough to ruin any business, no matter how prepared.

Throughout the history of the Illinois Workers’ Compensation Commission, Illinois Courts have been charged with the task of deciding the compensability of workers’ compensation claims of illness during epidemics.  The Illinois Supreme Court decided as early as 1932 that an illness contracted during an epidemic can, under certain circumstances, be considered an accident arising out of the course of employment under the Workers’ Compensation Act.  While the Workers’ Occupational Diseases Act has traditionally compensated employees for occupational illnesses that develop over time, but on limited occasions, the Illinois Supreme Court has used the act to compensate employees who contracted a contagious disease while working.

Even though contagious diseases contracted during epidemics have been found compensable, rest assured that employees who become infected with the H1N1 influenza will not automatically have a claim against your company.  Since 1932, Illinois courts have developed certain standards that employees must meet in order to have a compensable claim for a contagious disease contracted at work.  The first part of the standard is that an employee with a contagious disease must prove that his exposure to the particular disease was greater at his workplace than it was to the general public.  Traditionally, these types of workplaces have included schools, shelters and medical facilities but in today’s world could foreseeably include daycares, pharmacies, work that requires airplane travel, and many other workplaces that subject employees to higher risk of the H1N1 influenza.  Frighteningly, the CDC’s classification of the workplace as a “point of spread” for illnesses may indicate the government’s overall willingness to classify many more workplaces as subjecting employees to a higher risk of the virus.

The second part of the standard is that, even if an employee is more likely to be exposed to the disease in the workplace, he must also prove that he was in fact exposed to the disease in that workplace.  The “mere possibility” that an employee may have become afflicted with a disease in the course of his employment is not sufficient to warrant an award of compensation.  For example, the Illinois Supreme Court held that although an elementary school teacher had a higher possibility of contracting a contagious virus than the general public, the teacher’s claim was not compensable because there was no evidence that she contracted the virus from a child at that school with that contagious disease. Rosenbaum v. Industrial Commission, 93 Ill.2d 381, 444 N.E.2d 122 (Ill. 1982).

However, it is important to note that Illinois courts have carved out a large exception to the requirement that an employee prove that his exposure to a disease occurred in the workplace.  In Sperling v. Industrial Commission, a 1989 case in which an operating room nurse contracted hepatitis B, that Illinois Supreme Court deemed the requirement of proving direct contact with a disease too rigid.  129 Ill.2d 416, 544 N.E.2d 290 (Ill. 1989).  In this case, the claimant presented no evidence that any patient with whom she worked was infected with hepatitis.  Instead, her treating physician testified that he believed the claimant had contracted the hepatitis through work-related activities based on his study of articles and textbooks which stated that health care workers have a greatly increased risk of contracting hepatitis B due to exposure to infected patients’ tissue and body fluids.  The Illinois Supreme Court held that it was illogical to require the establishment of a direct causal link when there is a presumption that the disease easily could have been contracted by the health care worker during employment from an undetected source.  Therefore, a health care worker’s exposure to an occupational disease may be inferred from indirect proof when it is established that direct proof may be irrelevant.  This newer standard requiring only indirect proof of exposure to a contagious disease virtually eliminates the second requirement for employees of medical facilities and other workplaces in which employees are exposed to the disease as part of their jobs.

In today’s litigious world, it seems almost inevitable that a worker infected with a more serious case of H1N1 influenza will bring a workers’ compensation claim against his employer.  Employers in Illinois’ employee-friendly workers’ compensation system must be ready for a tough fight.

In spite of a difficult legal climate, Illinois employers are not entirely powerless against workers’ compensation claims by employees who have contracted the H1N1 influenza.  The best way for employers to limit their risk of claims for viruses such as the H1N1 influenza is to limit the spread of the disease within their workforce during times when infection is likely.  Encourage employees to get both a seasonal influenza vaccine and the H1N1 vaccine.  Consider having a nurse who can administer these vaccines onsite or giving employees time off from work to get vaccinated.  Develop policies that will encourage sick workers to stay home without fear of negative effects on their employment.  Allow workers to telework (if possible) and create other leave policies that minimize the impact of their absence on the company.  Educate all employees on influenza risk factors, symptoms, and protective behaviors and provide resources that promote personal hygiene such as tissues, no-touch trash cans, hand soap, hand sanitizer, disinfectants and disposable towels for workers to clean their work surfaces.  For information on risk factors and protective behaviors, please see www.flu.gov.

Most importantly, minimize employees’ contact with other employees, clients or patients who are sick.  If an employee becomes sick while at work and cannot go home immediately, place that employee in a separate area until he can go home.  For medical facilities and other high-risk employers, isolate patients who show signs of the H1N1 influenza and allow only designated employees to enter the restricted areas.  Assign all employees the task of watching patients for signs of influenza and reporting patients who may be infected.

Rebecca L. Weinberg is president and managing attorney for the Weinberg Law Group in Chicago. She can be contacted at rweinberg@weinberglaw.net</i>.