Rice Law Office Blog

Is COVID-19 An Occupational Disease under New Hampshire Worker’s Compensation Law?

As addressed in previous articles, there will be worker's compensation coverage available for many employees who contract COVID-19 at work. The most likely path to this coverage will be with the understanding that the employee became ill due to a neutral risk, but that the employee faced a greater risk of getting ill due to his or her work, as compared to the general public. This is known as the increased risk test and employees who can show this will likely find coverage available for lost wages, medical bills and job protections.

However, healthcare workers who treat patients with diagnoses of COVID-19 may have more than one route to winning coverage should they contract COVID-19. Certainly, these workers should be able to show they are at increased risk of contracting the illness as compared to members of the general public due to the work they do and to the correlating increased frequency of direct exposure to illness, even if no specific transmission of the disease can be traced to a known carrier. If the healthcare worker has had to engage in care that entails unusually contagious situations, such as exposures in the process of resuscitation or intubation or without full PPE, the fact that their risk was increased due to the qualitative nature of their work is clear.

That said, there may be an argument to be made that these workers or those in similar circumstances, may alternatively be eligible for workers’ compensation benefits under NH RSA 281-A:2 XIII: Occupational Disease.

RSA 281-A:2 XIII Occupational Disease

In accordance with RSA 281-A:2 XIII “Occupational disease” is “...an injury arising out of and in the course of the employee’s employment and due to causes and conditions characteristic of and peculiar to the particular trade, occupation or employment. It shall not include other diseases or death therefrom unless they are the direct result of an accidental injury arising out of or in the course of employment...”

Workers' compensation coverage for COVID-19 in New Hampshire: Here’s what employers and employees in New Hampshire need to know about how they can limit both the spread of COVID-19 and economic loss for everyone:

Employer immunity legislation is a hot topic as politicians argue over whether our current laws are sufficient to provide coverage for employees who contract COVID-19 at work, while still reasonably limiting employer liability.

We all have an interest in worker safety. A sick employee is a sick mother, father, daughter, son, neighbor or friend. The illness of an employee and the economic impact of that illness is contagious to all those who are connected to that person. One sick employee passes the illness to another, who brings it home and then sends it to school, then on to the grocery store, to grandma and the new baby cousin and so on.

Likewise, a sick and unemployed person’s financial insecurity is also contagious. Without income or insurance and while simultaneously facing mounting medical bills, COVID-19 patients can’t help but spread the economic impact of their loss onto others in their circle. They can’t pay their bills or buy goods when their income stops and so landlords, shop owners, gas station workers, grocers, hairdressers and more suffer right along with the sick worker.

Over the last few months we have learned how connected we all are. We want employees to be safe and protected, and yet we need to reopen the economy. We want to have a safety net for those who do get sick at work, but we don’t want employers to go out of business providing this protection. As a community we face difficult choices and sometimes it feels like we face inevitable loss no matter what we do.