04/24/2020 by F. Nash Bilisoly, Esq.
While many states, including Virginia, have issued stay at home orders to help reduce the number of persons infected with COVID-19, most ship builders, ship repairmen, terminal and harbor workers are essential employees and must work despite the risk of catching and/or spreading the disease. It is not hard to imagine that these employees may inevitably get sick and claim benefits under the Longshore Act. The following article provides an overview of some of the potential issues involved with a Longshore Act claim based on COVID-19.
The Longshore Act entitles covered employees to recover benefits when an occupational disease or infection arises out of exposure to harmful employment conditions that are present in a “peculiar or increased degree” by comparison with employment generally. Thus, not only must hazardous conditions of the employment be the cause of the disease, those conditions must be peculiar to the particular employment, i.e., “a worker must be exposed to hazards greater than those involved in ordinary living.”
The largest hurdle, then, for a COVID-19 claim under the Longshore Act will be proving that the disease arose from the peculiar hazards of employment. The likelihood of an employee meeting this burden will depend on his or her employer’s adherence to social distancing recommendations and sanitation practices, OSHA guidelines, and/or the number of COVID-19 diagnoses in the workplace. Additionally, the claimant’s activities outside of work will be important. Contact tracing may well be crucial in this analysis.
But even if the employee can establish that he or she might have contracted the disease at the workplace, the fact that exposure to COVID-19 is a risk to every individual regardless of his/her employment will make it difficult to prove that the peculiar risks of the employment exposed the employee to hazards greater than those in ordinary living. The employee may attempt to do so by proving that the type of employment made it impossible to comply with social distancing and sanitation guidelines, such as the need to work in close or cramped conditions, but if employers make stringent efforts to prevent such conditions, such proof will be difficult.
While there is currently no specific Longshore Act COVID-19 guidance on what determines work-relatedness, published OSHA enforcement guidance suggests that OSHA will not assume a causal relationship between COVID-19 and the workplace unless there is objective evidence that the contraction of the disease was work-related – such as several cases developing among workers who closely work together without any other explanation. The Division of Federal Employee Compensation (DFEC) has also provided guidance on work-related causation. Unless an employee is a high-risk employee [health workers and law enforcement], the DFEC is requiring that the employee provide a factual statement that includes all available evidence concerning their exposure to prove the exposure occurred at work.
As guidance from both agencies suggests, proving that COVID-19 exposure is work-related is a fact-specific inquiry that will likely be decided on a case-by-case basis. To safeguard workers and mitigate against Longshore Act claims, employers should make every effort to follow social distancing recommendations, enhance cleaning, sanitizing and mitigation practices, and follow relevant CDC, OSHA, and other appropriate workplace guidance.
About the Authors:
Nash Bilisoly has been a partner with Vandeventer Black since 1985 and concentrates his law practice in maritime and employment related matters, primarily representing shipyards, terminals and vessels. His practice focuses on insurance and employment issues including Jones Act, Longshore and Harbor Workers’ Defense, Coverage and Legislative initiatives.
For more information, please contact Nash at firstname.lastname@example.org.