What happens after the applause?

New Yorkers roar with applause when health care workers change shift at 7 nightly. Signs plaster buildings praising “essential workers.” But what happens when the nurse treating COVID-19 patients contracts the virus and is sick at home? What happens when the bus operator who accepts passengers without knowing who might have the virus tests positive and is hospitalized? Applause and appreciation will not cover their medical bills or support their families.

Since 1914, New York’s workers’ compensation law has protected workers and their families from the economic and medical consequences of work-related injury or illness. The system provides medical treatment and wage-replacement benefits for injured workers. If a worker dies because of a work-related injury, the surviving spouse, children and other dependents may receive death benefits.

So it stands to reason that the workers’ compensation system would provide compensation and medical protection for essential workers ill with COVID-19 in addition to benefits for the families of those who died because they were told to report to work. Unfortunately, that might not be the case.

The law covers accidents and occupational diseases. An occupational disease is an injury or illness that is associated with the nature of the occupation whereas an accident is an illness or injury arising from a specific job-related incident or exposure. In both, the injured worker bears the burden of proving that he or she was injured at work.

For example, a health care worker must offer proof of the moment that he or she was directly exposed to COVID-19 at work and also connect the illness to that exposure to succeed in a claim for a work-related accident. This is an impossible burden, not to mention the fact that a health care worker cannot identify exposure to a patient without violating that patient’s right to confidentiality.

A health care worker could instead claim coverage as an occupational disease on the basis that exposure to the virus is a feature of his or her occupation as compared to other types of work. But even this seemingly clear-cut argument can present problems. For example, during the pandemic nurses who normally work in units such as obstetrics or orthopedics were reassigned to treat COVID-19 patients. It would be unsurprising if employers and insurers argue against coverage on the basis that exposure to infection is not typical of these jobs.

Other essential workers will have an even more difficult time obtaining workers’ compensation benefits. Because these workers are subject to the accident standard, they might be required to pinpoint a specific workplace exposure as the cause of their illness. How is a bus driver to know from which customer he contracted the virus?

Depending on how these issues are decided, thousands of essential workers with COVID-19-related illness could fall through the system’s cracks, leaving them without payment for time out of work or medical bills.

State officials must amend the law to include a presumption that essential workers who contract the virus did so as a result of their job. This would reflect that essential workers who commute to work in hospitals, grocery stores, buses and trains are at a greater risk than the millions of other workers told to work from home. It wouldn’t provide unlimited coverage – in legal terms, it would just shift the burden of proof from the sick worker to the insurance company.

At least 13 states have taken steps to make sure that their workers’ compensation systems cover essential workers with COVID-19. New York, with more essential workers and more cases of COVID than anywhere else in the country, has done nothing.

Essential workers need more than applause and kind words.

Sanjai Doobay is a workers’ compensation lawyer in Farmingdale.