On April 10, 2020, Gov. Andrew Cuomo announced that he was "working with New York's Congressional delegation to create a COVID-19 Heroes Compensation Fund to support health care and other frontline workers and their families who contracted COVID-19." This announcement followed the Governor's previous Executive Orders directing all "non-essential" workers to telecommute and identifying "essential businesses" that would remain operational, and whose workers were therefore required to physically report to work in order to remain employed. Executive Orders 202.6, 202.7 and 202.8.

There is no question about the urgent need to provide compensation and medical treatment for "essential workers" who have fallen ill and died from COVID-19. Unlike many professionals and white-collar workers, their essential work cannot be done remotely, and instead they are exposed daily to a high risk of infection, often without adequate protective equipment. As a result, thousands of essential workers across a range of occupations—health care, transit, delivery services, police, utilities, grocery workers and more—have fallen ill; hundreds have died.

Fortunately, New York has an existing mechanism that provides coverage for workers who fall ill as a result of workplace exposures: its Workers' Compensation Law. Enacted in 1914 "for socioeconomic remediation purposes 'as a means of protecting work[ers] and their dependents from want in case of injury' on the job … [a]n employee is entitled to receive compensation on a "no-fault" basis for all injuries 'arising out of and in the course of the employment.' Under Workers' Compensation Law §2(7), "injury" and "personal injury" means only 'accidental injuries arising out of and in the course of employment and such disease or infection as may naturally and unavoidably result therefrom.' To effectuate the statutory objectives, Workers' Compensation Law §21(1) creates a presumption that injuries 'arising out of and in the course of' employment are compensable under section 10(1) as 'accidents.' Moreover, given the remedial nature of the Workers' Compensation Law, the Court has construed the statute and given the Board, as 'trier[] of the facts', a very wide latitude in determining whether a disabling condition is an accident. In particular, the Court has noted also that an accidental injury must be gauged by the 'common-sense viewpoint of the average [person].'" Matter of Johannesen v. New York City Dept. of Hous. Pres. & Dev., 84 N.Y.2d 129, 134 (1994) (cit. omit.).