(April 2021) - With the continued spread of COVID-19 and the likelihood of burgeoning claims, the Department of Labor has directed some guidance to employers and their insurance carriers for handling COVID-19 claims by longshoremen. Obviously, the looming issue is how can an employer know that that an employee contracted COVID-19 on the job rather than in some other activity or at some other location. Unfortunately, the Department of Labor's guidance is not particularly beneficial for employers. The Department of Labor's guidance provides that injured workers who claim a COVID-19 exposure at work need only establish their claim by prima facie evidence. Once that is done – in other words, a prima facie showing that the virus was contracted at work – a presumption is established that the illness was contracted on the job "in the absence of substantial evidence to the contrary." This presumption arises out of Section 20 of the Longshore Act.
In order to refute that presumption, the employer would have the burden of proving that the employee was not exposed to the virus at work. The impracticality of that burden of proof is fairly obvious. So long as one other employee had COVID-19 during the relevant time period, refuting that presumption is going to be near impossible. Employers will have to develop evidence that the employee engaged in other activities – social, familial, or otherwise – that more likely exposed him to the virus than a work exposure. This may involve establishing timelines for the exposure and the development of the disease. Clearly, medical experts will be a necessary part of that presentation.
Even in other cases involving maritime employees, such as Jones Act seamen, we can expect that the greater burden will be on the employers to disprove that COVID-19 was contracted on the vessel. In light of the featherweight causation standard applicable in Jones Act cases, we can expect plaintiff employee lawyers to argue that the greater burden is legally on the employer. This will be an issue of key concern for the next several years as COVID-19 cases are processed through the courts.
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