Coronavirus And Virginia Workers’ Compensation Part II: Burdens Of Proof And The Stay-At-Home Order

04/15/2020 by Megan B. Caramore, Esq.

This article is a follow up to the Coronavirus and Virginia Workers’ Compensation article found HERE and deals with how social distancing precautions and the Governor’s stay-at-home order may impact the Virginia workers’ compensation treatment of Coronavirus claims.  As previously discussed, it seems likely that Coronavirus claims will fall within the ‘ordinary disease of life’ category of claims under the Virginia Workers’ Compensation Act.  These types of claims impose a heightened burden of proof on claimants to show by clear and convincing evidence that the virus arose out of and in the course of their employment and did not result from causes outside of the employment.  

In an effort to flatten the curve in Virginia, Governor Northam issued a number of orders aimed at mitigating the Coronavirus threat.  Executive Order 53 required certain businesses to close or to significantly modify their business models to comply with the ban on gatherings of 10 or more people. It also required all business to adhere to social distancing recommendations, enhanced sanitizing practices on common surfaces, and other appropriate workplace guidance from state and federal authorities while in operation.  Additionally, Executive Order 55 requires Virginians to remain at home except for certain enumerated purposes, such as obtaining food, medical services, or going to and from work. 

How might these orders effect potential Coronavirus workers’ compensation claims?  They may make it easier for claimants diagnosed with Coronavirus to meet their burden to show that the virus arose out of and in the course of their employment and did not result from causes outside of the employment.  For example, a grocery store worker who becomes infected might be able to show by clear and convincing evidence that her exposure occurred at work where, a) there is a known outbreak at the store, and b) due to the stay-at-home order, the worker had no other possible exposures.  Similarly, if a claimant was able to show that his or her employer failed to adhere to social distancing recommendations and sanitation practices, and/or OSHA guidelines the likelihood of the claimant meeting the necessary burden of proof might also increase. 

A workplace outbreak combined with a lack of possible outside exposures due to the stay-at-home restrictions and social distancing may create a factual scenario where workers’ compensation liability is possible. In an effort to safeguard workers and mitigate against workers compensation risks, employers should make every effort to follow social distancing recommendations, enhanced sanitizing practices, and other appropriate workplace guidance.

If you have any questions about how the Virginia workers’ compensation treatment of Coronavirus claims may impact your business, please contact us. Vandeventer Black has a knowledgeable and experienced team of workers’ compensation attorneys able to assist you. 

For more information and to read additional articles regarding COVID-19, please click here.

 


About the Author:

Megan concentrates her practice in state and longshore workers’ compensation insurance defense, as well as FELA litigation. Caramore has argued before the Virginia Supreme Court and regularly handles cases in federal and state courts.

She also appears before the Virginia Workers’ Compensation Commission and the Office of Workers’ Compensation Programs. She is a member of the Virginia Association of Defense Attorneys and the Virginia Workers’ Compensation Inns of Court. For more information, please contact Megan at mcaramore@vanblacklaw.com.

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