On Memorial Day, Governor Cuomo announced that state and local governments will provide death benefits for frontline and essential workers who have died from COVID-19.
In making the announcement, Governor Cuomo stated “I personally feel a grave responsibility to our frontline and essential workers who understood the dangers of this virus, but went to work anyway because we needed them to. And we’re going to make sure that every government in the State of New York provides death benefits to those public heroes who died from COVID-19 during this emergency.”
Based on Governor Cuomo’s statements, the death benefits would apply to New York’s many frontline workers, including government employees at the city, county and state levels, who have lost their lives due to COVID-19.
This announcement is welcome and necessary. However, what about the families of essential workers who were not public employees who died due to COVID-19? Are there death benefits available for those workers’ families?
Workers’ Compensation Law and Pending Changes in NY to Include COVID-19
There may be. Workers who contract COVID-19 and die as a result may be able to claim workers’ compensation. It is key to present evidence to show that the contraction of the virus was work-related. That means showing that the virus was contracted in the course of employment and that the virus arose out of the particular circumstances of the work involved, i.e. exposure to the virus was “peculiar” to employment, by creating a greater risk of contracting it.
Given the widespread nature of Coronavirus and the many ways of being exposed to it, proving – definitively – that an essential worker got the virus while at work or due to work can represent a significant hurdle to clear.
As a result, some states have recently implemented changes to their states workers’ compensation laws to make it easier for health care workers, first responders and other essential workers to receive benefits, by providing a presumption of coverage for these types of workers who test positive for COVID-19.
What about New York? New York has not passed legislation yet creating such a presumption. However, legislation is pending (SB S8266) that would amend the workers’ compensation law to add COVID-19 to the list of “occupational” diseases. The law would essentially create a presumption that essential workers at greater risk of exposure to COVID-19 will be presumptively deemed to have contracted it due to the nature of their employment.
If this law is passed it would make it easier for family members to obtain death benefits for their loved ones who died as a result of COVID-19.
Who would be covered by the proposed changes to NY’s Workers’ Compensation Law?
Who would the law cover? It is broad and includes “healthcare workers, transportation workers, delivery workers, pharmacy workers, grocery workers, broadcasting workers, essential construction workers, public employees, educational workers, cleaners, building service workers, workers who deal with the public, and all workers not able to work from home.” It’s understandable that the coverage of workers for these proposed amendments is lengthy. So many essential workers have had to go to work during this pandemic, at great risk to their own personal safety and that of their families. The loss of these essential workers’ lives due to COVID-19 cannot be remedied by a monetary award. However, ensuring their family members can receive death benefits is the least that should be undertaken to recognize the sacrifice their family members made by serving others and paying the ultimate price for doing so – their lives.
Hopefully, the proposed changes to the workers’ compensation law pass in New York, and soon.