The new Vermont COVID-19 workers compensation law made it easier for an employee to prove a worker’s compensation claim for a COVID-19 diagnosis. How will this apply to school employees such as teachers, college professors, principals, paraeducators, custodians, cafeteria workers, guidance counselors, and school staff?
- In a normal workers compensation claim, the employee has to prove “causation”— that is, prove that the injury or condition was caused by work. This often requires the employee to have a doctor’s opinion in writing saying the illness or condition was more likely than not caused by work, otherwise, the employee’s claim will fail.
The new law removed the requirement that the employee proves causation for certain COVID-19 cases. It creates a “presumption” under certain circumstances that a COVID-19 diagnosis was caused by work, thereby removing the requirement that the employee proves it with a doctor’s written opinion. This new law applies to two circumstances: (1) documented exposure; and (2) front-line workers.
If an employee can show a documented exposure to an individual with COVID-19 at work, the employee will have an automatic workers compensation claim. “Documented exposure” means the employee was present with a person who was diagnosed with COVID-19 at that time or within 14 days after the exposure.
The law does provide that the employer has a defense to the presumption if it can show it complied with CDC/Vermont Dept of Health guidelines. So if an employer was strict about requiring masks and enforcing the six-feet social distancing, it may have a defense.
- (However, even without the presumption, the employee can still prove causation. If a person can show a documented exposure to a positive individual at work, and the contact was reasonably close or over a long period of time, I believe the employee will have a successful workers compensation claim. See more on this below.)
But what if there is not a “documented exposure”? What if a teacher contracts COVID-19 but cannot prove they were present with someone at work who was diagnosed with COVID-19 within 14 days? If the teacher is considered a “front-line worker” under the statute, they will still be able to establish a claim.
Is a Teacher a “Front-line Worker”?
The law does not specifically include teachers in the list of occupations defined as “front-line workers.” (That list includes police, firefighters, medical, correctional, etc.) However, the law does state that “front-line worker” includes “a worker performing services that . . . place the worker at a similarly elevated risk of being exposed to or contracting COVID-19 as the other listed occupations.” Elevated risk of exposure to COVID-19 is defined as “performance of a job that requires the worker to have . . . close contact with [within six feet]. . . members of the public” in the course of employment.
So, if a school employee’s job requires her to be within six feet of students, arguably the employee has an “elevated risk of exposure” similar to the listed occupations. Presumably, this would be easier to show for teachers of younger students who require closer supervision and contact. But one can imagine disputes over whether a teacher is “required” to have contact closer than six feet. If a school is careful about social distancing, this will be more difficult to prove.
- If an employee can show this, and thus prove he is a “ front-line worker” as defined by the law, a COVID-19 diagnosis will be presumed to have been caused by work even if there is no documented exposure to a positive individual.
If an employee does not fall under the new law, it does not mean they don’t have a workers compensation claim. It only means they do not have the benefit of the presumption of causation, and that they must prove causation as in any other case. That requires the employee to obtain a written opinion from a doctor that the illness more likely than not contracted at work. Presumably, the doctor would need to know how often the employee interacts with members of the public at work, for how long and how closely; and similarly the same interaction outside of work, and whether the employee follows masking and social distancing guidelines outside of work. The doctor would consider this information to weigh whether it is more likely that the illness was contracted at work or outside of work.