Keith S. Howell Partner and Kelli A. Evangelist Associate of Hinshaw & Culbertson Fort Lauderdale

Florida's Office of Insurance Regulation issued a memorandum on April 6 to provide guidance on workers' compensation issues related to COVID-19. The memo states, "First responders, health care workers and others that contract COVID-19 due to work-related exposure would be eligible for workers' compensation benefits under Florida law See Section 440.151, Fla Statute" the statute otherwise known as Florida's occupational disease theory. Still, the complexities of determining whether the virus was work-related are a difficult challenge claimants must face when bringing a COVID-19-related workers' compensation claim.

Workers who have contracted COVID-19 face a higher burden of proving by clear and convincing evidence that the disease meets the requirements of Florida's occupational disease theory, governed by Fla. Stat. Section 440.151.

First, to be an occupational disease, an employee must generally prove that the illness or disease was contracted during the course of employment. This means the employee must actually have medical evidence to prove they contacted the virus while on the job site.

Secondly, an employee must prove the illness or disease arose out of or was caused by conditions peculiar to the work and creates a risk of contracting the disease in a greater degree and in a different manner than in the public generally. This means, the employee must prove by some type of statistical or documentary evidence that the likelihood of contacting the virus is greater in their profession, compared to the general population.

The rate of new filings may reflect this heightened burden. While many expected workers' compensation claims are expected to increase given the pandemic, statistics show otherwise. According to research conducted by the State of Florida, in March 2020, the filing of workers' compensation claims decreased only 2%. However, April 2020 reflects a drastic 23% decrease in workers' compensation filing rates.

Alternatively, the cause for reductions in filings could simply be that individuals have been out of the workplace. Reports have not been released showing the number of new COVID-19-related workers' compensation fillings in Florida.

Industries at risk are those whose claimants can easily show that contracting the virus was work-related under Florida's occupational disease theory. Notably on May 19, the Occupational Safety and Health Administration (OSHA) issued a memorandum providing examples of when the virus is work-related and when it is not.

OSHA explains a COVID-19 illness is likely work-related when an employee's job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and where there is no alternative explanation. Alternatively, the agency describes a nonwork-related example when the employee is the only worker to contract COVID-19 in the vicinity and job duties do not include frequent contact with the general public, regardless of the rate of community spread.

This could mean essential workers whose physical presence was required on site earlier in the pandemic, such as grocery store employees and delivery drivers, may be successful when proving claims under the occupational disease theory. Their jobs required frequent human interactions with others in the height of the pandemic, when otherwise they would be self-quarantining at home.

Moreover, special consideration will be given to health care workers and staff as these employees will likely enjoy a presumption that any communicable disease was contracted as the result of employment. Florida courts have upheld this idea in prior instances of infectious diseases. For example, in Wuesthoff Memorial Hospital v. Hurlbert, 548 So. 2d 771, 774-75 (Fla. 1st DCA 1989), the court held that a worker handling blood samples was entitled to workers' compensation benefits as his occupation posed a substantially higher risk to Hepatitis B.

For some workers, regulations have already been passed granting a presumption that the virus was work-related. Florida's chief financial officer issued Directive 2020-05 granting a rebuttable presumption that the virus was contracted within the scope of employment to limited, selective groups of "frontline state employees."

Meanwhile, there has been a nationwide movement to ensure workers who contract COVID-19 during the course of employment are presumptively entitled to appropriate workers' compensation and related benefits. States such as Alaska, California, Kentucky, Minnesota, Missouri, New Hampshire, Utah and Wisconsin have all changed their workers' compensation regulations to include similar rebuttable presumptions. Although, other than California, most states grant this presumption to health care workers or first responders only.

Still, lawyers and activists alike are lobbying to expand protections to those "essential" employees. Until then, Florida employees must meet a more stringent burden when bringing any COVID-19-related workers' compensation claims.

Keith S. Howell is a partner in the Fort Lauderdale office of the U.S. law firm of Hinshaw & Culbertson. He focuses his practice in the areas of workers' compensation defense, general liability defense and commercial litigation. He may be reached at [email protected].

Kelli A. Evangelist is an associate with the firm and focuses on labor and employment and workers' compensation matters. She may be reached at [email protected]