This flu season, the flu vaccine’s effectiveness is estimated at only 39% thanks in large part to the H3N2 influenza strain. Against it, the vaccine is only 32% effective, according to the Centers for Disease Control.
Hospital emergency rooms are overwhelmed with flu-related illnesses, with the increased workload exacerbated by the fact that many emergency room employees are out sick—with the flu.
Record flu seasons like this one beg the question: Is the flu considered an occupational illness under workers compensation?
Two tests must be satisfied before an illness or disease can be considered occupational and compensable under workers comp:
- The illness or disease must be “occupational,” meaning it arose out of and was in the course and scope of the employment.
- The illness or disease must arise out of or be caused by conditions “peculiar” to the work.
To determine whether an injury arose out of and in the course and scope of employment, simply ask: Was the employee benefiting the employer when the employee was exposed to the illness or disease? Note that this test is subject to the interpretations and intricacies of various state laws.
But the higher hurdle is the second test. If the illness or disease is not peculiar to the work, it is not occupational and not compensable under workers comp.
Consider black lung disease—that’s peculiar to the work of a coal miner, who is subject to prolonged exposure to higher-than-normal concentrations of coal dust. Or consider a health care worker who contracts an infectious disease such as HIV or hepatitis as the result of contact with infected blood. The worker’s peculiar exposure to such diseases results in an illness that is occupational and compensable.
Qualifying an illness or disease as occupational and peculiar to the work may ultimately require an industrial commission or court intervention to sort medical opinion from legal facts. Declaring an illness or disease compensable or non-compensable requires judging each case based on its own merits and the circumstances surrounding the worker’s illness.
Medical professionals and courts may investigate many factors, including:
- The timing of the symptoms in relation to work. Do symptoms worsen at work and improve following prolonged absence from work?
- Whether co-workers show similar symptoms.
- The commonality of such illness to workers in that particular industry.
- The worker’s predisposition to the illness, due to an allergy or other medical issue.
- The worker’s personal habits and medical history. Patients in poor medical condition, such as those who are overweight, smokers or afflicted with unrelated heart disease or with poor family medical histories, may be more likely to contract a disease or illness than others in similar circumstances.
Judged against the qualifying factors, does any flu create a true workers comp exposure? The short answer: no, not likely. Other than the fact that the H3N2 strain has garnered intense media attention, it is no more occupational in nature than any other flu strain.
Flu is a humankind exposure, not one that is peculiar to most employments. Contracting the flu at work is usually not sufficient to trigger an assertion of occupational illness—unless the employee can prove they have an increased risk of contracting any illness, sickness or disease due to the peculiarity of their job, such as a health care worker who is face to face with sick people all day.
Barring long-term health complications or death resulting from the flu, there is usually no real basis for a workers comp claim.
Chris Boggs is executive director of the Big “I” Virtual University.