A MESSAGE FROM BULLARD & ASSOCIATES
The Oklahoma legislature recently revised 85A O.S. §65(d)(2) by removing certain language; to wit:
(D)(2) No compensation shall be payable for any contagious or infectious disease unless contracted in the course and scope of employment.
There is no longer an exception given to the required burden of proof for an employee who works in a “hospital or sanatorium in which persons suffering from that disease are cared for or treated.” The change is beneficial for employers especially when one considers 85A O.S.§§ 65(D)(3) and 65(F)(1)(a) which continue to read:
(D)(3) No compensation shall be payable for any ordinary disease of life to which the general public is exposed.
(F)(1) An employer shall not be liable for any compensation for an occupational disease unless:
(a) the disease is due to the nature of an employment in which the hazards of the disease actually exist and is actually incurred in the course and scope of his or her employment….
A pandemic is the very definition of a “disease to which the general public is exposed.”
If the employee works for a medical provider in a facility where Coronavirus is being treated, compensability may be problematic. While we are unable to locate any case law in Oklahoma regarding the compensability of, for instance, flu as an equivalent, other states have consistently ruled the exposure is a “humankind exposure” rather than one peculiar to most employment and therefore NOT compensable.
Please continue to take precautions.
Donald A. Bullard