State News : Kentucky

Communicable disease cases require a very fact specific analysis. The definition of a compensable injury under Kentucky workers’ compensation law excludes communicable diseases “unless the risk of contracting the disease is increased by the nature of the employment.”[1] Unlike some other jurisdictions, in Kentucky the employee does not necessarily have to show the disease was contracted during employment.[2]  Communicable disease cases such as COVID-19 are compensable if the risk of acquiring the disease is greater for the employee than it is for the general public.[3]

Obviously the risk of contracting COVID-19 is higher for medical professionals and first responders than the public at large.[4] On March 13^th, 2020, Kentucky Employers Mutual Insurance Co. (KEMI) acknowledged this heightened risk, and in addition to compensation for losses resulting from contracting COVID-19, announced it would also pay wage-replacement benefits for any first responder or employee in the medical field who is quarantined due to direct exposure to a person diagnosed with COVID-19.[5]

In other professions it will be more difficult for the employee to show the risk of contracting COVID-19 was higher due to his/her employment versus the risk to the general public. This is especially true the more widespread the disease becomes. Again this will be a very fact specific analysis conducted on a case by case basis.

In order to protect your business and employees it is extremely important to minimize the risk of COVID-19 by following any and all state or local orders, mandates and advisories. On March 25^th, 2020, Kentucky Governor Andy Beshear issued an Executive Order closing all nonlife-sustaining businesses, except as needed to conduct Minimum Basic Operations, as defined in the order.[6] Certain enumerated businesses are permitted to remain open, but are required “to the extent practicable” to abide by the following:

1.    ensuring a distance of 6 feet between employees and customers;

2.    ensuring employees practice appropriate hygiene measures’ including regular, thorough hand washing or access to hand sanitizer;

3.    regularly cleaning and disinfecting frequently touched objects and surfaces;

4.    permitting employees to work from home where feasible; and

5.    identifying sick employees and asking them to leave the premises (strongly encouraged to offer paid leave).

In addition, public-facing businesses that remain open must post a flyer per Order of the Cabinet of Health and Human Services.[7]

The Kentucky Department of Workers’ Claims (DWC) has cancelled in-person proceedings and relaxed the rules for taking remote depositions.[8] The DWC has also published guidance promoting the use of telehealth and telephysical therapy when appropriate for the treatment of workplace injuries and occupational disease.[9]