A large portion of New York’s workforce continues to provide essential services to the rest of the state. Essential workers, including healthcare professionals and grocery store clerks, are at constant risk of exposure to COVID-19. Consequently, there are several questions about whether and when New York State’s workers compensation laws cover the essential workers who contract the disease and must take time off.
(1) Am I eligible for Workers’ Compensation Benefits? / Which of my employees are eligible for Worker’s Compensation Benefits?
Virtually, all employers in New York must provide workers’ compensation coverage for their employees. This includes all employees of a for-profit employers (including part-time, borrowed, and leased employees), domestic employees working forty or more hours for the same employer, and most workers compensated by a nonprofit organization. Independent contractors and a very small category of occupations are not covered under the Workers’ Compensation Law.
(2) The person I work for lets me set my own hours and dictate my tasks for the day. Am I an employee or an independent contractor? What about my side-job as a ride-sharing service driver?
Independent contractors are not entitled to workers’ compensation benefits because an employer-employee relationship does not exist. Whether such a relationship exists is a determination that is made by the Workers’ Compensation Board. The Board considers several factors including:[1]
Gig workers (e.g. if you work for Uber, Lyft, or Instacart) are independent contractors and are not eligible for workers’ compensation benefits. However, gig workers can collect unemployment benefits.
(3) I was physically injured on the job / I have an employee who was physically injured while working. What should I do?
Claimants can get workers compensation for accidental injuries arising out of and during employment. The claimant must show there was a causal relationship or nexus between the injury and the employment. The injury must have happened within the scope of employment. An injury that happened at work but is not a natural consequence of job performance is not a compensable injury. This means that an injury from falling off a ladder while restocking shelves might be compensable, but an injury that happens in the workplace but not because of job-related functions is not. For example, employees injured while intoxicated from alcohol or under the influence of controlled substances cannot claim benefits. Benefits are also precluded if the injury is caused by an altercation with a co-worker and that altercation was because of purely personal reasons. Employees who initiate pranks or assaults cannot claim benefits, whereas victims of these pranks can.
(4) I think I got sick from someone at work or from working with hazardous materials. / My employees are working in conditions that might expose them to some sort of disease. Are we/they covered?
Claimants can get workers’ compensation for occupational diseases, which are diseases that can be contracted within the course of employment. A disease is considered occupational if it is the result of a distinctive feature of the kind of work performed by the employee and others similarly employed. The disease must be a common and regular hazard to which all employees in the same kind of employment would be exposed.
The New York State Court of Appeals, in Goldberg v. 954 Marcy Corp., 276 N.Y. 313 (1938), defines occupational disease as: “one which results from the nature of the employment, and by nature is meant, not those conditions brought about by the failure of the employer to furnish a safe place to work, but conditions to which all employees of a class are subject, and which produce the disease as a natural incident of a particular occupation, and attach to that occupation a hazard which distinguishes it from the usual run of occupations and is in excess of the hazard attending employment in general.”
In practical terms, diseases that can be contracted because of the nature of the job are covered (e.g. getting asbestosis from working with asbestos materials) but diseases that are contracted from the occasional sick co-worker are not (e.g. getting the common cold). Generally, communicable diseases such as tuberculosis and infectious hepatitis, qualify as occupational diseases if you are working in an occupation that brings you into regular contact with persons who are infected.
(5) I have a pre-existing condition / my employee has a pre-existing condition. How does this limit the workers’ compensation claim?
New York State courts apply a causation rule for those who have pre-existing conditions: the rule separates those with active pre-existing conditions from those with dormant pre-existing conditions.[2] Active pre-existing conditions are those which are known and are being treated prior to the injury (e.g. compromised lung function because of a chronic obstructive pulmonary disease). Dormant pre-existing conditions are those which were not known of or were obvious prior to employment (e.g. long periods of walking for job activated the dormant condition of cavus foot, causing pain to the individual). Only dormant pre-existing conditions are compensable because it is presumed that the performance of the employment caused the pre-existing condition to be later discovered.
(6) If I’m eligible as an employee, can I make a claim related to COVID-19? / My employee(s) tested positive for COVID-19 while working for me – am I responsible for workers’ compensation?
Maybe, but this is something that federal and state governments are still figuring out. There’s no doubt that COVID-19 is highly communicable and that more likely than not, essential workers can contract it while performing their essential job duties. But there’s still a causality problem. Certainly, health professionals, for example, who are working directly with COVID-19 patients may have an easier argument for what caused their illness. However, this is less certain with essential services where the risk has been drastically minimized (e.g. line cooks who are not coming into direct contact with sick persons).
To that end, the New York State Workers’ Compensation Chairwoman, Clarissa Rodriguez, is encouraging insurance carriers to assist employers and allow for employees to file COVID-19 related workers’ compensation claims. Further, the NYS Workers’ Compensation Board recently released guidance suggesting that injuries related to COVID-19 are compensable injuries. In the meantime, case-law suggests that workers’ compensation benefits were available for those who contracted a communicable disease (specifically, tuberculosis) from direct and constant exposure to sick persons.
(7) What if an employee contracted COVID-19 during their commute? Can the employee still receive workers’ compensation benefits?
The traditional rule in New York is that employees are not working within the scope of their employment when commuting to and from work.[3] The only recognized exception to this is when the commute is incidental to the employment (e.g. truck drivers are covered because the form of transportation, the truck, is covered by employment).
As with the risk of exposure from the workplace, the answer is maybe, but it is still being determined. Employees who must take public transportation or travel near others are at risk of contracting the disease outside the workplace. Given Governor Cuomo’s order mandating that only essential workers can work outside the home, it’s feasible that in these circumstances traveling to the worksite is incidental to employment. Further, the causality problem persists and there is no way (at present) to determine the source of the contraction.
Even if employers are being vigilant in reducing the risk of exposure to COVID-19, they are not precluded from providing coverage if one of their employees does contract the disease. Thus, employers should exercise caution and not expose employees unnecessarily. Employers can mitigate the number of future claims by reconsidering which employees should come into work.
(8) I’m working for Uber Eats/Instacart, etc. – what are my options if I get sick from providing a service to someone?
Gig workers are independent contractors and are not eligible for workers’ compensation benefits. See FAQ (2).
(9) How do I file a claim?
File it online right here. The fastest way to file a claim is to do it online. Within ten days of the injury, an employer is required to report the injury to its insurance company.
Claimants must wait seven days before filing for wage benefits. Individuals do not have a claim if the injury or disease results in less than seven days of lost work (with some exceptions including volunteer firefighters and EMTs). Compensation is also retroactive if the individual is out of work for more than 14 days from the date of the injury.
Claimants are not required to retain an attorney to file a claim, but can secure assistance from one. The NYS Workers’ Compensation Board provides information on where to find legal representation. The NYC Bar also provides a Legal Referral Service for those with legal questions, including workers’ compensation.
(10) What are the benefits?
Benefits include cash benefits for lost wages, medical benefits for accident-related treatment, any supplemental benefits depending on the severity of the circumstances.
Successful claimants can get workers’ compensation to pay for all reasonable and necessary medical treatment relating to the injury. The claimant can also get a compensation benefit that covers lost wages if they have been out of work for more than 14 days.
Those deemed by a medical professional to be completely disabled are eligible to receive two-thirds of their average weekly wages, capped at $934.11. Those deemed by a medical professional to be only partially disabled and have not returned to work are eligible to receive two-thirds of their average weekly wages multiplied by the percentage of their disability, and capped at $934.11. Those who are partially disabled but have returned to work and are earning less due to the injury, are eligible to recover two-thirds of the difference in the wages up to the capped amount.
(11) What if an employee dies from their illness? Can benefits be paid to their family members who are dependent on their income?
If an employee dies from a compensable injury, then the surviving spouse and/or minor children may be entitled to death benefits. The family members may be entitled to “two-thirds of the deceased’s average weekly wage for the year before the injury.” The weekly compensation cannot exceed the weekly maximum. If there is no surviving spouse or children, then the decedent’s parents or estate may be entitled to a lump sum of $50,000. Workers compensation can also cover funeral expenses up to $12,000 in metropolitan New York counties and up to $10,500 in all other counties.
The family member must file a Workers’ Compensation Death claim with documentation stating the death was related to the work injury.
Written by Law Clerk Rafita Ahlam.
[1] See Le Fevre v. Tel A-Car of New York, Inc., 603 N.Y.S.2d 600 (3d Dep’t 1993).
[2] See, e.g., Hollander v. Valor Clothers, Inc., 457 N.Y.S.2d 1002 (3d Dep’t 1982).
[3] See Lemon v. New York City Transit Auth., 72 N.Y.2d 324, 327 (1988) (citing Greene v. City of New York Dep’t of Soc. Servs., 44 N.Y.2d 322, 325 (1978)).
