Marcia Hultman

Cabinet Secretary

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Workers' Compensation Coverage and COVID-19

Workers' Compensation Coverage and COVID-19

Is COVID-19 compensable under workers’ compensation?

Maybe. For an employee who is infected with COVID-19 to be covered by workers’ compensation, the worker must establish COVID-19 is an “occupational disease” which means that exposure to the disease is something that is an essential part of the job (example: doctor or nurse) and not a result of incidental contact from a job that working with the public is expected (example: cashier or waiter). Further, to be eligible for workers’ compensation benefits, an employee must be unable to work for at least 7 consecutive days.

“Occupational disease" is defined in SDCL 62-8-1(6) as:
a disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment and includes any disease due or attributable to exposure to or contact with any radioactive material by an employee in the course of employment.

Furthermore, according to case law, a “[c]ondition is ‘peculiar to a particular occupation,’ within workers' compensation statute's definition of a compensable occupational disease, when it is the result of a distinctive feature of the kind of work performed by a claimant and others similarly employed. SDCL 62–8–1(6).” Sauer v. Tiffany Laundry & Dry Cleaners, 2001 S.D. 24, 622 N.W.2d 74. What this means is that a person’s occupation must require that person to be exposed to COVID-19, otherwise, it is not compensable.

In the alternative, if exposure to COVID-19 is considered to be the injury and COVID-19 is the disease resulting from the injury pursuant to SDCL 61-1-1(7), the worker must still establish that contracting COVID-19 arose out of and in the course of employment. This requires a showing that there was a causal connection between the injury and employment. Voeller v. HSBC Card Servs., Inc., 2013 S.D. 50, ¶ 8, 834 N.W.2d 839, 84. Further, “every jurisdiction ... accepts, at the minimum, the principle that a harm is compensable if its risk is increased by the employment…” What this means is that the worker must show that employment put the worker at an increased risk of contracting COVID-19. For more information or questions on COVID-19 and workers’ compensation please contact the Division of Labor at 605.773.3681. For general information on COVID-19 in South Dakota please contact the Department of Health at 1.800.997.2880.

Please note that this is an evolving situation and some insurance companies may choose to include coverage of COVID-19 in certain circumstances.