Alan A. Ayers, MBA, MAcc is Chief Executive Officer of Velocity Urgent Care and is Practice Management Editor of The Journal of Urgent Care Medicine.
Urgent Message: Exposure to Coronavirus by an urgent care provider or staff can lead to absence from work, unplanned medical expenses, and invoke short-term disability. Take precautions and create a business infectious disease outbreak response plan that you can share with everyone at your facilities.
“Wash your hands!”
Anytime you hear a report about the Coronavirus (COVID-19), the recommendations almost always end with this command. It’s good advice, and those in the healthcare field who need to heed this and much more to stay protected from this disease. But what happens when a healthcare worker such as a physician assistant or receptionist at an urgent care facility is infected? How does the owner and managers of the urgent care center address this “occupational exposure?”
The Coronavirus (COVID-19) is an infectious disease with the highest potential transmission rate among healthcare workers, first responders, school teachers, and others whose positions bring them into contact with a large number of sick people.
This article will discuss the growing concern among urgent care facility employees as to how owners and managers will protect them from Coronavirus. The question being raised is whether the Coronavirus an occupational disease.
The issue of occupational diseases in the urgent care setting has be explored in the past with a focus on the more general flu (influenza), where it’s accepted that the flu is ubiquitous, community acquired, and has a long incubation period making it difficult to impossible the time/source of infection as being job-related.
The Coronavirus can be set apart from influenza in terms of urgent care exposure, and thought of as more akin to an HIV infection from a bloodborne pathogen exposure in the urgent care. In that situation, there is a specific and identifiable source, a mode of transmission, and the fact that it’s not a disease that staff would typically be exposed to outside of work in a health care setting.
With that preface, there are generally several specific elements that must be satisfied before any illness or disease—including the Coronavirus—qualifies as occupational and thus compensable under workers’ compensation:
- The illness or disease must be “occupational,” meaning that it arose out of and was in the course and scope of the employment; and
- The illness or disease must arise out of or be caused by conditions “peculiar” to the work.
Simply stated, to be a compensable injury, the disease must occur a result of the ill worker’s employment. Further discussion on these required elements follows.
The Definition of “Occupational Disease”
There is a range of definitions for “occupational disease.” For example, on the simple side is the definition in Washington, where “occupational disease” means “such disease or infection as arises naturally and proximately out of employment under the mandatory or elective adoption provisions of this title.” In contrast, Ohio statutes define “occupational disease” with greater detail:
[A] disease contracted in the course of employment, which by its causes and the characteristics of its manifestation or the condition of the employment results in a hazard which distinguishes the employment in character from employment generally, and the employment creates a risk of contracting the disease in greater degree and in a different manner from the public in general.
Some states require more than this. For example, Arizona has six requirements, including proof of a “direct causal connection between the conditions under which the work is performed and the occupational disease.”
In all of the definitions, there must be a sufficient causal connection or link between the employment and the injury or the contracting of the disease. Courts will look at the degree to which there is a sufficient causal connection between an employee’s disease and his employment to justify workers’ compensation benefits. Again, courts and legislatures have defined this causal connection in a variety of ways. In most cases, “it depends,” which is the answer to most questions of legal analysis. Here, the answer hinges on the totality of the facts and circumstances surrounding the incident, including:
- The proximity of the place of the contact to the place of employment;
- The degree of control the employer had over the place of the contact; and
- The benefit the employer received from the contracting employee’s presence at the place of the accident.
These factors are not exhaustive, but are “illustrative of the facts to be considered under the totality of the circumstances.” For example, one author notes that the determination of whether 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. Some of the factors analyzed include:
- The timing of the symptoms in relation to work, and whether they worsen at work and improve following prolonged absence from work;
- Whether other staff at the urgent care center exhibit or have experienced similar symptoms;
- The commonality of the illness, such as Coronavirus, to healthcare workers in the industry;
- A staff member’s predisposition to the illness (such as an allergy or other medical issue); and
- The worker’s personal habits and medical history.
Notably, bad habits and poor medical history (and heredity) can obscure the relationship between the occupation and the illness. The failing of an urgent care employee to wash her hands may be a contributing factor and may be used in an urgent care owner’s defense to an employee’s worker’ compensation claim or civil lawsuit.
Best Practices for Urgent Care Owners
Aside from extreme and frequent handwashing, urgent care owners should institute a business infectious disease outbreak response plan for employee and patient safety, as well as to mitigate any liability in the event that an employee contracts the Coronavirus.
Owners should make certain that the plan is flexible and to involve employees in developing and reviewing the plan. This can and should include a thorough discussion of the facility’s plan to determine if there are any gaps or problems in the plan that need to be addressed. In addition, share your plan with all urgent care employees and explain the types of human resources policies, workplace and leave flexibilities, and pay and benefits that may be available to them.
It’s also important for urgent care owners with more than one business location to provide local managers with the authority to take appropriate actions outlined in their business infectious disease outbreak response plan based on the condition in each area.
An employee plan for Coronavirus should include the following elements:
 U.S. Department of Health & Human Services, U.S. Centers for Disease Control and Prevention (CDC), CDC in Action: Preparing Communities for Potential Spread of COVID-19 (February 23, 2020). Retrieved at https://www.cdc.gov/coronavirus/2019-ncov/php/preparing-communities.html.
 Coronaviruses are a large family of viruses that are common in humans and many different species of animals, including camels, cattle, cats, and bats. Rarely, animal Coronaviruses can infect people and then spread between people, such as with MERS-CoV and SARS-CoV. The virus that causes COVID-19 is spreading from person-to-person in China and some limited person-to-person transmission has been reported in countries outside China, including the United States. U.S. Department of Health & Human Services, U.S. Centers for Disease Control and Prevention (CDC), Interim Guidance for Businesses and Employers (February 26, 2020). Retrieved at https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html.
 Alan A. Ayers, Employer Liability for Flu Infection, Journal of Urgent Care Medicine. Retrieved at https://www.jucm.com/employer-liability-for-flu-infection/.
 Christopher J. Boggs, Coronavirus, Pandemics and Workers’ Compensation, Insurance Journal (February 19, 2020). Retrieved at https://www.insurancejournal.com/blogs/academy-journal/2020/02/19/558705.htm.
 Wash. Rev. Code § 51.08.140. Courts in Washington have held that an occupational disease is “one peculiar to a given occupation and brought about by exposure to certain harmful conditions which are constantly present with all workmen in the occupation.” Polson Logging Co. v. Kelly, 195 Wash. 167, 80 P.2d 412, 1938 Wash. LEXIS 391 (Wash. 1938). See also Rambeau v. Department of Labor & Industries, 24 Wash. 2d 44, 163 P.2d 133, 1945 Wash. LEXIS 315 (Wash. 1945).
 Ohio Rev. Code Ann. § 4123.01(F) (emphasis added). The Supreme Court of Ohio has expressly recognized that this test is conjunctive in nature, requiring each prong to be satisfied before compensation is allowed. Fisher v. Mayfield, 49 Ohio St.3d 275, 277, 551 N.E.2d 1271 (Ohio1990). As a general rule, the workers’ compensation statute must be liberally construed in favor of the injured worker; however, the worker bears the burden to prove both prongs of this two-prong formula. Carnahan v. Morton Bldgs., Inc., 2014-Ohio-4139, ¶ 24 (Ohio App. 2014). See generally, Strome v N. R. Hamm Quarry. 1998 Kan. App. Unpub. LEXIS 1200, at *6-7 (Kan. App. Dec. 31, 1998) (“’ordinary diseases of life’ are not compensable because they develop without exposure to a hazard particular and peculiar to the workplace.”).
 Aguirre v. Indus. Comm’n of Ariz., 245 Ariz. 587, 590, 432 P.3d 946, 949 (Ariz. App. 2018), citing Ariz. Rev. Stat. § 23-901.01(A). These statutory requirements focus on the “arising out of” and “peculiar” requirements: (1) There is a direct causal connection between the conditions under which the work is performed and the occupational disease; (2) The disease can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment: (3) The disease can be fairly traced to the employment as the proximate cause; (4) The disease does not come from a hazard to which workmen would have been equally exposed outside of the employment; (5) The disease is incidental to the character of the business and not independent of the relation of employer and employee; and (6) The disease after its contraction appears to have had its origin in a risk connected with the employment, and to have flowed from that source as a natural consequence, although it need not have been foreseen or expected. Id.
 Fisher v. Mayfield, 49 Ohio St.3d 275, 277, 551 N.E.2d 1271 (Ohio 1990).
 See, e.g., Hinson v. Cont’l Tire the Ams., 832 S.E.2d 519, 525 (N.C. App. 2019); Matter of Corina-Chernosky v Dormitory Auth. of State of N.Y., 157 AD3d 1067, 1068, 69 N.Y.S.3d 182 (N.Y. App. Div. 2018) (“To be entitled to workers’ compensation benefits for an occupational disease, a claimant must establish a recognizable link between his or her condition and a distinctive feature of his or her occupation through the submission of competent medical evidence.”) (internal quotation marks, ellipses and citations omitted);
 Lord v. Daugherty, 66 Ohio St.2d 441, 423 N.E.2d 96 (Ohio 1981), syllabus.
 Fisher, supra, at 279, fn. 2. See Griffith v. City of Miamisburg, 2008-Ohio-6611, ¶ 10 (Ohio App. 2008) (“Because workers’ compensation cases are fact specific, a flexible and analytically sound approach is preferable to hard and fast rules, which can lead to unsound and unfair results.”).
 Boggs, supra. In these case, the diagnosis of the disease itself may require expert medical testimony.
 CDC, Interim Guidance for Businesses and Employers, supra
 CDC in Action: Preparing Communities for Potential Spread of COVID-19, supra.