In New Hampshire, there is coverage for employees who contract COVID-19 at work and there is also limitation of liability on the employer side. What’s more, there is insurance for the benefit of both the employee and employer in the event of exposure.
All this together is good for people and business alike, as it provides a safety net for COVID-19 loss, a means for paying for associated health care and a path back to work that will support the economy.
The primary question regarding workers’ compensation coverage, as related to the contraction of COVID-19, will hinge on whether the employee contracted COVID-19 in and during the course of work. In accordance with the law, and as interpreted and applied by the courts, the burden of proof to establish this necessary causal connection, and thus to establish eligibility for workers’ compensation benefits, is on the employee.
To meet this burden, the law requires that an employee prove more probably than not, “that the injury occurred within the boundaries of time and space created by the terms of employment,” and that it “occurred in the performance of an activity related to employment.” Both prongs of the burden must be met to prevail in a claim for benefits.
At first glance it seems it would be difficult, if not impossible to prove an employee contracted COVID-19 at work. After all, given the widespread incidence of COVID-19 in virtually every New Hampshire county, the risk of infection exists at work, but also in the community and even at home. However, this is not fatal to coverage under our law.
An employee may recover from an illness under workers’ compensation even if the cause of contraction is unknown and the risk of illness is not distinct to work, as long as the employee can show the illness results from a “risk greater than that to which the general public is exposed.” This is referred to as the increase risk test.
