State News : Alabama

New Jersey lawyer and nationally recognized workers’ compensation guru, John Geaney recently posted a COVID-19 Q&A on his award winning Blog site.  The questions are certainly relevant nationally and so the following are Alabama specific answers.

Question 1: What happens when an employer sends its employees home for several weeks out of a general concern for safety and for prevention of contagion? Must the employer pay workers’ compensation benefits?

Answer: No, but the employee will likely be entitled to unemployment benefits. 

Question 2: What if an employer advises an employee that he or she must be quarantined because the employee may have been exposed to someone at work who has the coronavirus?  Must the employer pay workers’ compensation benefits?

Answer: No, because the mere possibility of an injury or occupational disease is insufficient to trigger coverage under the Act. 

Question 3: What if the government shuts down a company for a 30-day period and the company has to send everyone home for that period of time with no work available from home. Does the employer owe workers’ compensation benefits?

Answer:  No, but the employee will likely be entitled to unemployment benefits. 

Question 4: What if an employee becomes worried that he has symptoms similar to that of the coronavirus and refuses to come to work? He quarantines himself for 14 days out of concern for his safety and that of fellow employees. No one at work has the virus and it is unclear where the employee may have been exposed, if there was exposure at all. Does this generate an obligation to pay workers’ compensation?

Answer: No, because the mere possibility of an injury or occupational disease is insufficient to trigger coverage under the Act. 

Question 5: Along the lines above, suppose the employer finds out that the HR Director’s son just returned from Italy, where the number of deaths from coronavirus have now topped those in China. The employer advises the HR Director that she must quarantine for 14 days. Are workers’ compensation benefits due?

Answer: No, because the mere possibility of an injury or occupational disease is insufficient to trigger coverage under the Act. 

Question 6: What if two police officers alternate use of a patrol vehicle. On Monday, Officer Chris is driving the vehicle alone and begins to experience symptoms of coronavirus later that evening, unknown to Officer Aiello, who then drives the vehicle on Tuesday alone. Later in the evening Officer Aiello finds out that Officer Chris just entered quarantine for suspected coronavirus. Officer Aiello sees her primary care physician who recommends a quarantine period for her. Officer Aiello files a first report of injury based on potential exposure to the virus in the patrol vehicle when she drove it. Is Officer Aiello entitled to payment of temporary disability benefits?

Answer: No, because the mere possibility of an injury or occupational disease is insufficient to trigger coverage under the Act.  Further, in Alabama, an occupational disease is defined as “a disease arising out of and in the course of employment… which is due to hazards in excess of those ordinarily incident to employment in general and is peculiar to the occupation in which the employee is engaged but without regard to negligence or fault, if any, of the employer.”  Therefore, for COVID-19 to be considered compensable in Alabama, the employee would have to be able to prove that contracting it was due to hazards in excess of those ordinarily incident to employment in general and that it is peculiar to the employee’s occupation.  It will be difficult for an employee to show that contracting the virus resulted from a risk of employment.  The reason being that, like the flu, you face the same sort of risk when you go home or when you walk about in public.  Some state laws have presumptions for health care workers or first responders.  Alabama is not one of those states.  Without a statutory presumption in place, it would be nearly impossible to prove causation. 

Question 7: Suppose a hospital floor nurse has been working for the past month with patients who have been tested for possible coronavirus.  So far all the tests have been negative.  The nurse is diagnosed with coronavirus herself, becomes seriously ill and is hospitalized.  She files for workers’ compensation benefits for her lost time and medical bills.  Is she entitled to workers’ compensation benefits?

Answer:   Probably not.  See answer to #6.

Question 8: Given that tens of thousands of employees are now working from home in Alabama due to state and federal guidelines, what if an employee gets injured at home and files a workers’ compensation claim?

Answer:  The Alabama Workers’ Compensation Act does not specifically address telecommuter/home based workers and there are not currently any high court opinions in Alabama addressing the issue.  Courts in other states have distinguished telecommuters from individuals who may just happen to be performing work at home on a given day.  In those states, once it was established that the employee and employer entered into a telecommuting arrangement, the hazards of the home were considered to be work place hazards.  Written telecommuting agreements that dictate hours of employment, areas of the house that are considered work space, and rules concerning prohibited activity are recommended to help employers and employees know what is and is not considered work activity. 

About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.