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Bird Flu, Swine Flu, Just the Flu and Pandemics: How Workers’ Compensation Responds

Author: Chris Boggs

A pandemic is defined as, an outbreak of a disease that occurs over a wide geographic area and affects an exceptionally high proportion of the population." Does a pandemic make an illness an occupational illness" and compensable under workers' compensation?

Two tests must be satisfied before an illness or disease qualifies as occupational and thus compensable under workers' compensation:

  1. The illness or disease must be occupational," meaning that it arose out of and was in the course and scope of the employment; and
  2. The illness or disease must arise out of or be caused by conditions peculiar" to the work.
Whether an illness arises out of and in the course and scope of employment is a function of the employee's activities. The simplest test toward determining whether an injury arises out of and in the course and scope of employment" is to ask: Was the employee benefiting the employer when exposed to the illness or disease? Be warned, this test" is subject to the interpretations and intricacies of various state laws.

Qualifying as occupational" is the low hurdle. The higher hurdle is whether the illness or disease is peculiar" to the work. If the illness or disease is not peculiar to the work, it is not occupational and thus not compensable under workers' compensation. An illness or disease is peculiar" to the work when such a disease is found almost exclusively to workers in a certain field or there is an increased exposure to the illness or disease because of the employee's working conditions.

For example, black lung disease in the coal mining industry is a disease that is peculiar to the work of a miner. Coal miners are subject to prolonged exposure to higher-than-normal concentrations of coal dust leading to black lung disease. This makes the disease peculiar to the coal mining industry.

Another example of an exposure peculiar" to the work is a healthcare worker contracting an infectious disease such as HIV or hepatitis as a result of contact with infected blood. The worker's unusual or peculiar" exposure to such diseases results in an illness that is occupational and compensable.

Qualifying an illness or disease as occupational and, more importantly, peculiar to the work (and thus compensable) may ultimately require industrial commission or court intervention to sort medical opinion from legal facts. No one test" is available to declare an illness or disease compensable or non-compensable; each case is judged on its own merits and surrounding circumstances.

Concluding that an illness is occupational, peculiar to the work and ultimately compensable is not necessarily based on the disease in question but on the facts surrounding the worker's illness. Factors investigated and considered by medical professionals and the court include:

  • The timing of the symptoms in relation to work: Do symptoms worsen at work and improve following prolonged absence from work (in the evening and on weekends);
  • Whether co-workers show or have experienced similar symptoms;
  • The commonality of such illness to workers in that particular industry;
  • An employee's predisposition to the illness (an allergy or other medical issue); and
  • The worker's personal habits and medical history. Patients in poor medical condition (overweight, smokers, unrelated heart disease, etc.) and/or with poor family medical histories may be more likely to contract a disease or illness than others in similar circumstances. Bad habits and poor medical history (and heredity) cloud the relationship between the occupation and the illness. For example, smokers may be ill-equipped to fight off the effects of illnesses to which others may have no problem being exposed.

What About (the latest Pandemic or Flu)

Judged against the qualifying factors presented, does any disease declared a pandemic create a true workers' compensation exposures? The short answer is, no, not likely." Other than the fact that a particular disease garners intense media attention, most pandemic" diseases are no more occupational in nature than the flu.


If it is proven that the employee has an increased risk of contracting any illness, sickness or disease due to the peculiarity of his or her job, then such diseases/viruses might be considered occupational and thus compensable. Remember, compensability as an occupational illness requires something about the job that increases the risk of exposure and illness.

As intimated earlier, healthcare workers may be able to prove the necessary peculiarity face-to-face with sick people ALL day to assert a compensable injury. Also, as was seen with COVID, sometimes governments step in to create a rebuttable presumption that an illness is occupational.

Which Policy Responds to Qualifying Occupation Illnesses and Diseases?

Occupational illnesses and diseases often have long gestation" periods. Employees may be exposed to the harmful condition for many years before the illness manifests. It is also possible that the employee doesn't contract the disease until years after the exposure ends. (None of these is true in the face of a pandemic real or fabricated.)

The workers' compensation policy specifically states that the policy in effect at the employee's last exposure responds to the illness even if the employee is working for another employer or even retired at the time the disease manifests itself.

Pandemics Aren't Special

A particular disease may be a humankind exposure rather than one peculiar to most employments. Contracting a specific ailment at work is not sufficient to trigger an assertion of occupational illness. To be occupational and compensable requires something peculiar about the work that increases the likelihood of getting sick. It is unlikely that both the occupational" and peculiar" thresholds will be satisfied to make most illnesses compensable" for the vast majority of individuals.

Last Updated: July 30, 2020

Last Updated: October 11, 2019
Original Publication Date: January 18, 2019

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