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Is Coronavirus Covered By Workers’ Comp?

On Behalf of | Apr 10, 2020 | Coronavirus, Family Medical Leave Claims, Retaliation, Workers' Compensation Retaliation, Wrongful Termination |

Best Ohio Workers’ Compensation Retaliation Attorney and Top Coronavirus Employment Law Lawyers Answer: Can my boss fire me after filing a Workers’ Compensation Claim after being exposed to Covid-19? Can I file for Workers’ Compensation if I caught the Coronavirus from work? Can I sue for retaliation even if my Workers’ Compensation claim is denied? Is it wrongful termination to be fired for being diagnosed with COVID-19? Is Coronavirus Covered By Workers’ Compensation

Is Coronavirus Covered By Workers’ Comp

As employment discrimination lawyers, our first priority is always our clients. Most of our employee’s attorneys went to law school because to help people that the world tries to beat people down. Right now, that feels like everyone. During this Coronavirus (COVID-19) pandemic there are so many uncertainties. Millions of Americans lost their jobs and want to know what they can do about it. According to this report, 3.28 million Americans filed for unemployment last week. That’s an unprecedented number of unemployed Americans. Our lawyers love our job because we can help those who need it most. During this time, with all this uncertainty, I cannot help but pause and reflect on my duty to Ohioans, and those who need help from our lawyers, now more than ever.

I know I’m being cheesy in my self-reflection, but it’s difficult because there is nothing else to do. If I feel this way, I’m sure health care workers feel this duty to help 10 times more than our lawyers. We completely recognized that our lawyers’ help cannot compare to the help and skill of brave medical workers, literally trying to save lives. For those of you reading this, that are struggling with our new reality, I encourage you to take advice from Spitz, The Employee’s Law Firm’s CEO Elise Spitz’s email: “We’re in rough waters, we have to keep rowing.” That is what we, as a firm, are trying to do. Just. Keep. Rowing. With that being said, a part of that task is keeping informed and updated with the ever-changing climate of Coronavirus updates.

President Donald Trump announced on March 29, 2020, that social distancing guidelines will continue until April 30, 2020. Virtually every new announcement or Covid-19 update announces changing national guidelines for employers and employees. While Governor Mike DeWine hinted at the potential of extending the stay at home order into May 2020. Other Governors, like Virginia’s, Ralph Northam, issued a stay at home order until June 10, 2020.

Our regular readers know that Spitz, The Employee’s Law Firm has been tracking the impact of Covid-19, and its impact on employment law for quite some time now. (see More Coronavirus (Covid-19) Tips For EmployeesCoronavirus: What Will Happen At Work?Our Handling Of The Coronavirus (Covid-19) OutbreakEmployment Law: Legislative COVID-19 ResponseCoronavirus (Covid-19): Our Firm is Thinking of You and Your Families). If you think you have been wrongfully fired, call our attorneys now for a free wrongful termination consultation.

This past week, our employment lawyers received an interesting phone call about Coronavirus job issues through our free and confidential consultation process. An Ohio employee called to see if she could potentially have a claim against her employer if she filed for workers’ compensation because of Coronavirus and was terminated. Essentially, she wanted to know from our employment lawyers if she had a claim for wrongful termination. Apparently, we are not the only ones getting this question. This local news story highlighted the increased number of workers’ compensation claims because of the Coronavirus.

The reality is, the answer to that is unclear whether the employee would have a claim under the Worker’s Compensation laws (but our lawyers see another type of claim to argue – keep reading). Let’s start with analyzing a potential Worker’s Compensation retaliation claim – Ohio courts are crystal clear if an employee is fired soon after filing a workers’ compensation claim, there is likely a claim for Workers’ Compensation Retaliation under R.C. § 4123.90. Under Ohio Revised Code Section 41239.90:

“No employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the workers’ compensation act for injury or occupational disease which occurred in the course of and arising out of his employment with that employer.”

It is important to note that this employment law says nothing about whether the employee was ultimately successful in their claim for workers’ compensation, it only matters that the employee filed a workers’ compensation claim, the employer knew about it, and the employee suffered some kind of retaliation because the employee filed the claim.

This distinction will become more and more important in the next few weeks. It is uncertain right now, whether these types of Coronavirus workers’ compensation claims will be successful. It will likely prove difficult to establish a connection between the Coronavirus and catching it at work—since it is so contagious and not limited to one particular space or environment. But, again, one thing that has not changed, is it does not matter whether the claim is ultimately successful to bring a claim for retaliation.

Another important issue that Ohio employees should keep in mind, especially health care workers, is that it is possible to bring a claim against an employer if the employer prevents an employee from filing a workers’ compensation claim. That what true before the Coronavirus outbreak, and it will be true after the Coronavirus outbreak. Ohio courts recognize a cause of action employees can use when their employer finds out that the employee intends to file a workers’ compensation claim, and then fires the employee before they have the chance to file the claim. Thereby, effectively preventing the employee from filing a workers’ compensation claim because they essentially ‘beat the employee to the punch.’

In 2011, the Ohio Supreme Court held in the landmark case Sutton v. Tomco Machining, Inc. that:

“R.C. 4123.90 expresses a clear public policy prohibiting retaliatory employment action against injured employees. Ohio recognizes a common-law tort claim for wrongful discharge in violation of public policy when an injured employee suffers retaliatory employment action after injury on the job but before the employee files a workers’ compensation claim or institutes or pursues a workers’ compensation proceeding.”

There are countless examples of this, under normal conditions. Under pandemic conditions, the best answer our employment lawyers can give you is right now is that we will update you when we know. Ohio’s Burau of Workers’ Compensation published this frequently asked questions page about Covid-19/Coronavirus and workers’ compensation. When asked, “is coronavirus a compensable workers’ compensation claim?” the answer for now is, “It depends on how you contract is and the nature of your occupation. Generally, communicable diseases like Covid-19 are not workers’ compensation claims because people are exposed in a variety of ways, and few jobs have a hazard or risk of getting the diseases in greater degree or a different manner than the general public. However, if you work in a job that poses a special hazard or risk and contract Covid-19 from the worker exposure, BWC could allow your claim.”

While this answer is murky at best, the good news is that the Ohio Bureau of Workers’ Compensation is still open and accepting claims. Our office has no plans to close and will continue to work through the pandemic.

Under Ohio Law, it is extremely important to call us right away. There is a small window under the law, specifically, an employee has 180 days, to notify an employer of the potential workers’ compensation retaliation claim. Like many things, great work takes time. If you think that you are being retaliated against or were fired because you filed a workers’ compensation claim after catching the Coronavirus, do not waste any time.

So, unsatisfyingly enough, the answer is it depends. A typical Sutton claim looks like this: an employee is performing work related duties, and during the course of work, they injure themselves. The boss finds out about the injury. Maybe the boss waits a few days to see how serious the injury is or is not. Once the boss finds out about the seriousness of the injury, or that the employee wants to file a workers’ compensation claim, he or she fires the injured employee before they can file the claim.

One side of me is exhausted from talking about all of this, and just wants things to go back to “normal.” The other nerd side of me is interested to see how difficult it will be for employees to prove they contracted the Coronavirus while performing their work. Particularly, I am interested to know the different factors that the courts will use to try to determine the likelihood that the employee caught the virus at work and not doing something else. Of course, if I had it my way, there would be more legal protections for employees anyways, especially, doctors and nurses who are fighting everyday against the virus. Even the threat of an ongoing global pandemic does not stop some employers, even hospitals, from breaking employment laws and retaliating against employees.

Okay, if you have made it this far, what are the other options? Well, if an employee files a Worker’s Comp claim for Coronavirus or COVID-19, that employee has implicitly informed his boss, manager or the company that he or she has been diagnosed with Coronavirus or COVID-19. Doing so, would potentially trigger a Family and Medical Leave Act (“FMLA”) claim. For more on potential FMLA-Coronavirus claims, see our FMLA attorney blogs on these issues (Coronavirus Law: Can I Be Fired For Refusing To Work?; COVID-19: Can Non-Essential Businesses Operate?; Law: What Is The Family First Coronavirus Response Act?; FMLA & Coronavirus: Who Can I Miss Work To Care For?).

For now, all we can do is keep on rowing.

At Spitz, The Employee’s Law Firm, our employment lawyers are standing by to take on your Coronavirus related employment claims, including if you are searching “I need a lawyer because I have been wrongfully fired or terminated;” “I have been discriminated against or harassed based on my disability or diagnosis”; or “I was fired for asking about Family Medical Leave Act (FMLA) during the COVID-19 pandemic.” In these uncertain times, if even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation. Call our office at 866-797-6040 to get help now. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.

Is Coronavirus Covered By Workers’ Comp


This employment law website is an advertisement. The materials available at the top of this Coronavirus page and at this employee’s attorney website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Can I file a Worker’s Comp claim for Coronavirus?”, “What should I do if I was fired today because of the COVID-19 pandemic?,” “My boss fired me because I filed for Worker’s Compensation” or “I was fired in retaliation for my Workers’ Compensation claim”, it would be best for to contact an Ohio attorney to obtain advice with respect to any particular employment law issue or problem. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.

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