contagious disease, Infectious disease, temporary disability benefits, waiting period, flu Can the Workers’ Compensation System be Vaccinated Against Influenza?
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March 02, 2018 3:47 AM

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.

 

Business and schools have been forced to close or curtail operations. Illness and fatalities in the
Map of the US Flu Season - Source US CDC.
Source: US CDC
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 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 the infectious disease. An ill worker must be out of work and under medical care for a certain period of time before temporary disability benefits are payable. New Jersey imposes a 7 day waiting period before benefits are paid.
Furthermore, most occupational disease claims are 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 the critical care setting such as the Intensive Care Unit, can not only cause their co-workers 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 events in the workers’ compensation setting. “The earliest compensable pulmonary diseases appear to have been infectious in nature. Prior to 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 from which 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). 
 
 
Whether it be influenza, Ebola, tuberculosis, smallpox, antibiotic-resistant infection, Zika, or something else, the workers’ compensation system needs to 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, ie. 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 the public health.

*
"Person to Person
People with flu can spread it to others up to about 6 feet away. Most experts think that 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 people who are nearby or possibly be inhaled into the lungs. Less often, a person might also get flu by touching a surface or object that has flu virus on it and then touching their own mouth or nose.
"The Flu Is Contagious
Most healthy adults may be able to infect other people beginning 1 day before symptoms develop and up to 5 to 7 days after becoming sick. Children may pass the virus for longer than 7 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. https://itunes.apple.com/us/podcast/the-forum-at-harvard-t-h-chan-school-of-public-health/id1107044568?mt=2&i=1000402395065
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).

Updated: 02/25/2018


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