April 19, 2020
As novel coronavirus disease (“COVID-19”) cases surge across the country, there will be a similar surge of COVID-19 cases filed under the Longshore and Harbor Workers’ Compensation Act (“the Longshore Act” or “LHWCA”) and its extensions, such as the Defense Base Act (“DBA”), the Nonappropriated Fund Instrumentalities Act (“NAFIA”), and the Outer Continental Shelf Lands Act (“OCSLA”). These cases should largely be compensable.
Are COVID-19 Claims Covered by the Longshore Act?
Most of us who have the relative luxury of working remotely are hunkered down in our houses, complying with shelter-in-place orders to prevent contracting or spreading COVID-19. In contrast, essential workers are circulating within society, risking exposure to ensure that the rest of us can continue to receive critical goods and services. Thus, when such a worker contracts COVID-19, it is probable that it was as a result of their inability to shelter in place.
Under the Longshore Act, it is not always necessary for a worker to prove that they contracted a disease as a result of employment. The Longshore Act contains a statutory presumption of compensability. See 33 U.S.C. § 920(a). What this means is that if a worker establishes that his or her work conditions could have caused the disease, then it is presumed that work did cause the disease. An employer can rebut this presumption. The exact legal test for rebuttal varies from circuit to circuit. However, the general rule is that the employer must present substantial evidence disproving a connection between the disease and employment. As some courts have framed it, the employer needs to produce sufficient evidence to convince a rational person that there is no connection. This rebuttal burden will be a difficult one for employers to carry where the main way to mitigate exposure risk is to stay home, but employment forecloses that option. If the burden is rebutted, then the burden of proof is upon the claimant to establish causation on a more-probable-than-not basis. But otherwise, the presumption controls, and the employer is liable.
Further, Defense Base Act employees—and arguably any other international Longshore Act or OCSLA employees—benefit from not just the standard presumption of compensability, but also a 24-7 zone of special danger extending their coverage outside of the traditional course and scope of employment. See Fleishman, Lewis and Lara Merrigan, “The Zone of Special Danger: When a Claim Arises in the Course and Scope of Employment Under the Longshore Act and Its Extensions,” The Longshore Textbook (Steven M. Birnbaum & Ralph R. Lorberbaum eds., 7th Ed., 2017). So, even if a Defense Base Act employee contracts the illness on a commercial airplane en route to his jobsite, while grocery shopping in a public market off-hours, or while off base for recreational purposes, it is considered work-related. The only exception is if the person is engaged in an activity that is thoroughly disconnected from his employment and is completely unpredictable.
COVID-19 Exposure in Longshore Act Covered Professions
Classic longshoremen are operating on the front lines of this crisis and have an elevated risk of contracting the virus as a result. This is not a theoretical observation; COVID-19 cases have already hit dispatch halls and ports. Union chapters are fighting to limit the spread of COVID-19 through their work force via increased sanitization and improved physical distancing. But the reality is that taking precautions is not as safe as staying home.
Likewise, as of this writing, more than two dozen offshore oil workers have tested positive. These workers are keeping our energy supply secure throughout these uncertain and unprecedented times. But considering the close quarters on which OCS workers dwell, paired with the rapid spread of the virus on the aircraft carrier USS Roosevelt and cruise ships, OCS workers seem particularly at risk.
Defense Base Act workers are also at an increased risk. Military installations such as forward operating bases (“FOBs”) are austere and often entail shared quarters, reducing sanitization and physical distancing possibilities. Foreign embassy construction often takes place in cities with high populations and requires workers to share tight spaces. Even on well-developed bases outside of war zones, COVID-19 presents a danger to contractors—for example, the Navy already announced a positive case at Guantánamo Bay. Care for positive patients presents logistical issues. Many work in third-world countries where medical care is provided via combat support hospitals or other facilities better suited to treat war-related trauma than a pandemic. It is unclear what procedure will ultimately be developed for such COVID-19 patients. However, news reports already indicate that three military contractors in Afghanistan tested positive. They were medevaced via the Air Force’s “transportation isolation system,” a C-17 with biocontainment units. The Landstuhl Regional Medical Center in Germany treated them.
Defense Base Act employees sent home to quarantine or recover might have trouble redeploying. Possible reasons are if their job is filled or eliminated, if government orders limit international travel, or because of the virus itself. Of course, most military contractors must meet strict standards for fitness, which might not be possible if coronavirus causes permanent lung damage. Under MOD 14, contractors may not deploy without a waiver if they have had a respiratory condition that “required hospitalization or [an] emergency room visit in the past 12 months.” See MOD14-Tav A § 7(A)(1), available at https://www.tam.usace.army.mil/Portals/77/docs/MOD14%20Tab%20A-Final.pdf. It is unclear whether COVID-19 should be categorized as a respiratory condition.
Similar logic applies to Nonappropriated Fund Instrumentalities Act employees, who ensure that those in the military have access to necessary services such as child care and supermarkets. See 5 U.S.C. § 8171. These workers serve both in the United States and abroad. If living at a base or other military installation, many of the same risk factors exist as with Defense Base Act employees. Nonappropriated Fund employees who work in jobs such as at supermarkets necessarily touch a large number of surfaces and interact with a significant number of people, and are thus at greater risk by virtue of their positions.
What Benefits Might be Available?
The Longshore Act provides medical and disability benefits for employees. Thus, any reasonable and necessary care related to employment-related COVID-19 treatment should be covered. If the care is urgent (e.g., an emergency room visit), it is not necessary to seek authorization before care, but if there is no urgency or danger, medical treatment reimbursement may be denied if the worker does not seek approval in advance. Further detail can be found at § 7 of the Longshore Act. See 33 U.S.C. § 907(b). You should consider consulting an attorney for more specific guidance.
If you are disabled from your job for more than three days as a result of COVID-19, you should consider filing a claim for disability compensation. The main definition of “disability” under the Longshore Act is “incapacity because of injury” to earn what you earned before your injury (salary continuation or payments through another program do not count—only what is earned via working). 33 U.S.C. § 902(10). So, if a COVID-19-infected employee is excluded from his or her jobsite, that person is unable to work because of that infection, and is therefore disabled. It is not necessary that the infection’s symptoms be so severe that the symptoms themselves preclude work. Likewise, if a person is sent home because of the infection and cannot go back to the jobsite because of travel restrictions or because the position was filled, that work is no longer available because of the infection, and thus disability compensation may be available. Again, there are nuances to this, so you may wish to seek legal counsel.
Death benefits are also available so long as the deceased had qualified dependents. Regardless of dependents, a funeral reimbursement of up to $3,000 is due, which is a figure that has unfortunately not been updated since 1984. Death benefits are due even if a person suffered a significant pre-existing condition; the death is still compensable so long as the work-related injury played a role—no matter how small—in causing (or advancing) death.
Information on the lasting effects of COVID-19 is still developing. In some cases, it causes apparently permanent lung damage. The Longshore Act has specific occupational disease terms, promulgated to address asbestos compensation. These can affect the timeline in which one must file a claim and provide notice of an injury along with the amount of compensation ultimately due. It is not clear whether COVID-19 fits the stringent “occupational disease” term of art since the injurious stimuli (the virus) is not particular to one type of employment.
Hopefully, as the world quickly ramps up its testing capacity and learns more regarding transmission, job sites can adapt to prevent outbreaks. But at least until then, if not beyond, COVID-19 will disproportionately affect workers covered by the Longshore Act. Therefore, Disability and medical care should be pursued unless it is known that the worker’s essential occupation did not cause the harmful exposure.