The Louisiana Legislature is currently considering proposed legislation which would provide workers’ compensation coverage for essential workers during the COVID-19 pandemic. The proposed law states that every essential worker who is disabled because of the contraction of the COVID-19 disease is entitled to the same compensation as if that essential worker had received personal injury by accident arising out of and in the course of his employment, which is nearly identical language to the workers’ compensation law for occupational diseases. See LSA R.S. 23:1031.1.
The proposed law broadly defines essential workers as “persons working in public safety, government, emergency response, health care, or private business as designated and deemed necessary or critical for the response to the COVID-19 pandemic by their employer or by virtue of their official commission.” This essential worker requirement is notably broader than the requirements for a claimant to prove an occupational disease. Under Louisiana law, a workers’ compensation claimant asserting a claim for an occupational disease must show that the disease or illness is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employees is exposed to such disease. The proposed COVID-19 legislation appears to differ from the occupational disease law with respect to proving the disease was contracted due to conditions characteristic of and peculiar to the claimant’s particular job. The proposed law also covers essential workers and their dependents whose death is caused by COVID-19.
Interestingly, the proposed law does not reference a standard of proof for medical causation of COVID-19 arising out of one’s employment, but merely requires that an employee disabled by COVID-19 be designated as an “essential worker” in order to receive compensation. The Louisiana Workers’ Compensation Act generally provides that causation must be proven by a “preponderance of the evidence,” which means that it is more likely than not that a disability was caused by a work-related incident, or in these cases, exposure to the virus at work. Some claims require a heightened standard of “clear and convincing evidence,” such as when an employee is totally disabled from doing any type of work.
Any comorbid or pre-existing conditions that an employee had at the time of the alleged exposure will likely impact the causation analysis. The presence of comorbid and/or pre-existing conditions will certainly affect claims that are asserted by an essential worker’s’ dependents who passed away after contracting COVID-19.
Claims by employees against their employers alleging contraction of COVID-19 are inevitable as the pandemic continues to affect workers, especially essential workers on the front lines. Each case alleging a disability due to COVID-19 will require extremely fact-specific determinations. For now, employers are wise to rely on the guidance set forth by the CDC and other government directives, which will likely serve as the starting point for the Workers’ Compensation Courts in determining the reasonableness of their response to workplace safety concerns.
For more information, contact Forrest Guedry.
 Available at: https://www.legis.la.gov/legis/ViewDocument.aspx?d=1168160.