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Can the Workers’ Compensation System be Vaccinated Against Influenza?
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Can the Workers’ Compensation System be Vaccinated Against Influenza?

Workers' Compensation

This flu season has been epidemic. It has severely affected the occupational health network and created challenges not foreseen by the crafters of the 1911 workers’ compensation act(s). Particularly compelling are issues surrounding how the benefits system can adapt to meet the effort of maintaining a healthier workplace and avoid the consequences caused by this communicable disease.

Businesses and schools have been forced to close or curtail operations. Illness and fatalities in the workplace have escalated. Workforces have been diminished by disease, and bystanders and co-workers have been infected.

A focus of attention is that ill workers who become infected at work report to work sick because a benefit structure is not in place to compensate them for lost time for illness during the early onset of the flu when they are most contagious*. Most jurisdictions impose a waiting period before temporary workers’ compensation benefits are paid. The system is out of sync with infectious diseases. An ill worker must be out of work and under medical care for a certain period before temporary disability benefits are payable. New Jersey imposes a 7-day waiting period before benefits are paid. M
ost occupational disease claims are initially denied and then delayed by litigation.

The complications for the workforce have become very serious, especially in the healthcare industry, i.e., hospitals. Nurses, physicians, and aides in a critical care setting, such as the Intensive Care Unit, can not only cause their coworkers to become ill but create complications that lead to death. Those with compromised immune systems become endangered. Such action places patients in a life-threatening situation. The created burden of this risk and the complications generated become enormous.

Infectious diseases, including tuberculosis and pneumonia, have long been considered compensable in the workers’ compensation setting. “The earliest compensable pulmonary diseases appear to have been infectious. Before the general amendments to the statute, the court attributed those illnesses to ‘accidental events.’ An employee who worked in a cold, damp, unheated garage/storage building for three (3) hours on a January afternoon while suffering from a head cold contracted pneumonia. He died approximately ten (10) days later. Compensation benefits were awarded to his widow based upon the reasoning that the exposure suffered by the decedent was greater than that which persons generally in his locality were exposed. The three-hour “exposure” in this case was still interpreted as an “accident” rather than as an occupational exposure, as we now understand the terminology. Richter v. E.I. Du Pont De Nemours & Co., 118 N.J.L. 404, 193 A. 194 (1937), aff'd 119 N.J.L. 427, 197 A. 276 (Err. & App.1938).” Gelman, Jon L, Workers Compensation Law, 38 NJPRAC 9.12 (Thomson-Reuters 2018). 

The workers’ compensation system nationally has been slow to react to the emerging threat of infectious diseases. See, US Worker Infected by Zika Virus - Is the Workers' Compensation System Ready?CDC worker monitored for possible Ebola exposure in lab error, and Hospitals’ Struggles To Beat Back Familiar Infections Began Before Ebola Arrived.

Whether it be influenza, Ebola, tuberculosis, smallpox, antibiotic-resistant infection, Zika, or something else, the workers’ compensation system must adapt to these emerging developments. An initial issue to focus upon would be the expeditious payment of temporary disability benefits immediately after the disease is diagnosed objectively while working in occupational environments where contagion exists, i.e., confirmed by quick laboratory testing such as a throat swab. Then invoke workers' compensation jurisdiction and commence temporary disability payments at once. This would require that the ill worker cease work immediately.

The workers’ compensation system must adapt to changes in the workplace and medicine. Emerging infectious disease is but one example of where an immediate change is necessary to meet the legislative intent of this social insurance system. Such changes will benefit all stakeholders and public health.


People with flu can spread it to others up to about 6 feet away. Most experts think flu viruses are spread mainly by droplets made when people with flu cough, sneeze, or talk. These droplets can land in the mouths or noses of nearby people or possibly be inhaled into the lungs. Less often, a person might also get the flu by touching a surface or object that has the flu virus on it and then touching their mouth or nose.


Most healthy adults may be able to infect other people beginning one day before symptoms develop and up to 5 to 7 days after becoming sick. Children may pass the virus for longer than seven days. Symptoms start 1 to 4 days after the virus enters the body. That means that you may be able to pass on the flu to someone else before you know you are sick, as well as while you are sick. Some people can be infected with the flu virus but have no symptoms. During this time, those persons may still spread the virus to others. US CDC

Other resources: Listen to The Flu Outbreak: What You Need to Know from The Forum at Harvard T.H. Chan School of Public Health in Podcasts.

Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise Modern Workers’ Compensation Law (West-Thomson-Reuters).

Recommended Citation: Gelman, Jon L.,  Can the Workers’ Compensation System be Vaccinated Against Influenza?, (2023),

© 2001-2023 Jon L Gelman. All rights reserved.

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