With the surge of coronavirus cases across the United States, and in West Virginia, questions arise concerning compensability of work exposures. Are coronavirus claims compensable under West Virginia workers’ compensation law? The answer depends on whether the coronavirus is considered an occupational disease under West Virginia law. If the employee is a public health or safety worker, the exposure to coronavirus may be compensable if the exposure occurred in the normal course of the employee's duties. An "ordinary disease of life" to which the general public is exposed outside the workplace is not compensable in West Virginia as an occupational disease.
In West Virginia, COVID-19 is not compensable as an occupational disease unless it is incurred in the course of and resulting from employment. W. Va. Code § 23-4-1(f). No ordinary disease of life to which the general public is exposed outside of the employment is compensable except when it follows as an incident of occupational disease. W. Va. Code § 23-4-1(f)(4). In other words, if an employee can prove by a preponderance of the evidence that the employee contracted coronavirus as a result of the employee’s job duties rather than from general public exposure, the coronavirus likely will be considered work-related. An employee must show a direct causal connection between the conditions under which work is performed and coronavirus, and that it follows as a natural incident of the work. If the employee can show studies or research link coronavirus to a particular hazard of the workplace, a prima facie
case of causation arises upon a showing the employee was exposed to the hazard and is suffering from the disease. The employer must then offer medical evidence to refute the employee's claim. See Hoult v. Workers' Compensation Com'r
, 383 S.E.2d 516 (W.Va. 1989). An employee must actually contract coronavirus and have the virus when making a claim. A fear of eventually contracting coronavirus is not enough for a compensable claim. See Marlin v. Bill Rich Construction, Inc.
, 482 S.E.2d 620 (W. Va. 1996).
For more information visit Spilman Thomas & Battle's COVID-19 Task Force resources page