Elderly people have been shown to be more susceptible to catching the coronavirus. Those with pre-existing conditions/disabilities and weaker immune systems are undoubtedly more at risk. A nursing home near Seattle, Washington has been particularly hard-hit. The Life Care Center has as of now “up to one-third of its 180 staff members under quarantine”. It also “accounts for 60% of the current US virus death toll by itself”, 23 exactly.[1] The astonishing numbers dedicated to one nursing home, and with regard to the death toll in the United States, is enough to open a discussion. What potential do senior home workers have to pursue workers’ compensation claims if infected?
According to the United States Department of Labor and OSHA, workers in the nursing home and the personal care facility industry have the right to “working conditions that do not pose a risk of serious harm.”[2] John H. Geaney’s blog on who is most likely to maintain an occupational disease claim under coronavirus lists public safety workers.[3] Although senior care workers traditionally do not fall in this category, there is reason to believe that they do have a claim if infected by an elderly person in the home. A vaccine for the coronavirus is not slated to come out for at least one year. It could take as long as 18 months. N.J.S.A. 34:15-31 phrases a “compensable occupational disease” as “due in a material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process, or place of employment”.[4] This would apply to senior care workers, who are at significantly higher risk than the general population, or in most other occupations, due to the vulnerability of elderly people to COVID-19, a contagious illness.
Senior home workers partake in some of the same tasks as hospital workers, including administering medication, dressing patients, drawing blood, and reviewing the health and welfare of its patients.[5] If a worker can “demonstrate exposure at work to “the excretions, secretions, blood, or other bodily fluids”, as Geaney puts it, there should be a presumption of compensability, especially if such exposure comes from a quotidian work duty such as drawing blood.[6] Most likely, many of the seniors in a nursing home have pre-existing, underlying conditions. Chronic medical conditions such as diabetes and lung disease makes any person more susceptible to the virus.[7] It is worth reviewing what legal channels nursing home workers have to pursue if infected during the course of their employment.
[1] Pasley, James. “What It’s like at the Washington Nursing Home Ravaged by the US Coronavirus Outbreak, with 63 Confirmed Infections and 23 Deaths.” Business Insider, Insider Inc., 12 Mar. 2020, www.businessinsider.com/photos-kirkland-washington-nursing-home-coronvirus-2020-3.
[2] “UNITED STATES DEPARTMENT OF LABOR.” Safety and Health Topics | Nursing Homes and Personal Care Facilities | Occupational Safety and Health Administration, Occupational Safety and Health Administration, www.osha.gov/SLTC/nursinghome/.
[3] Geaney, John. “The Potential Impact Of The Coronavirus On New Jersey Workers’ Compensation.” NJ Workers’ Comp Blog, NJ Workers’ Comp Blog, 28 Feb. 2020, njworkerscompblog.com/the-potential-impact-of-the-coronavirus-on-new-jersey-workers-compensation/.
[4] “2009 New Jersey Code :: TITLE 34 – LABOR AND WORKMEN’S COMPENSATION :: 34:15 :: 34:15-31 – ‘Compensable Occupational Disease’ Defined.” Justia Law, Justia, law.justia.com/codes/new-jersey/2009/title-34/34-15/34-15-31/.
[5] “CNA Skill: Dressing A Dependant Patient.” CNA Training Help, CNA Training Help, 30 May 2012, cnatraininghelp.com/cna-skills/dressing-a-dependant-patient/.
[6] Geaney, John H. “The Potential Impact Of The Coronavirus On New Jersey Workers’ Compensation.” NJ Workers’ Comp Blog, NJ Workers’ Comp Blog, 28 Feb. 2020, njworkerscompblog.com/the-potential-impact-of-the-coronavirus-on-new-jersey-workers-compensation/.
[7] Chow, Denise. “Coronavirus Is Hard on Older People – and Scientists Aren’t Sure Why.” NBCNews.com, NBCUniversal News Group, 10 Mar. 2020, www.nbcnews.com/science/science-news/coronavirus-hard-older-people-scientists-aren-t-sure-why-n1153701
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