Working With A Co-Worker That Is COVID-19 Positive – Is The Risk Greater Than That Of The General Public Under Ohio Law?

Donald G. Drinko By Donald G. Drinko, Gary D. Baker Jr.

An occupational disease is one that is 1.) contracted in the course of employment; 2.) the disease is peculiar to the employment; and 3.) the employment creates a risk of contracting the disease greater than the general public. R.C. § 4123.01(F). State ex rel. Ohio Bell Telephone Co. Krise, 42 Ohio St.2d 247, 327 N.E.2d 756 (1975). However, a common illness to which the general public is exposed is not generally considered an occupational disease. Ingram v. Conrad, 4th Dist. Athens No. 01CA36, 2001 WL 1674105, *12 (Dec. 20, 2001). Obviously, these issues have become magnified with the onset of COVID-19. Would working in close proximity to a COVID-19 positive co-worker mean that the job creates a risk greater than that of the general public?

The Eleventh District Court of Appeals recently addressed this issue in Yeager v. Arconic Inc., 2022-Ohio-1997. In Yeager, an injured worker appealed after they were denied the right to benefits under the Workers’ Compensation Fund for “COVID-19 Infection Exposure.” The injured worker presented evidence that he contracted COVID-19 after working alongside a co-worker in a furnace pulpit, who tested positive that day. The injured worker was initially found to be entitled to participate in the Workers’ Compensation Fund, but the employer appealed the matter into court pursuant to R.C. 4123.512. The trial court granted summary judgment in favor of the employer, finding that no genuine issues of material fact existed to establish that the injured worker’s COVID-19 infection was incurred in the course of and arising out of his employment. The injured worker then filed an appeal to the Eleventh District Court of Appeals.

In affirming the trial court’s judgment, the Eleventh District Court found that an injured worker required to work in “close proximity” to an infected co-worker was not sufficient to establish that his employment created a risk of contracting COVID-19 in a greater degree, and in a different manner, than the public in general. The Court noted that “common illnesses” to which the general public is exposed are not compensable, and that COVID-19 fell within this category as a “common illness.” The Court also stated that concluding that common illnesses were compensable would extend the workers’ compensation laws beyond their intended purpose. As a result, the Court held that the injured worker’s COVID-19 diagnosis did not satisfy the requirements to establish an occupational disease, and therefore the trial court’s decision disallowing the claim was affirmed.

This decision finding that COVID-19 is a “common illness” to which the public is exposed to generally impacts the way COVID-19 claims can be defended by employers, and provides a potential new argument for employers in COVID-19 claims going forward. If you would like to submit a question to Shop talk, or would like to discuss this or any other workers’ compensation issues, please feel free to contact me or my associate Gary Baker.