Workers' Compensation: Could You Claim for Avian Flu?

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Workers' Compensation: Could You Claim for Avian Flu?

16 July 2015
 Categories: Law, Articles

Around 3.8 million Americans suffer work-related injuries or illnesses every year. While employers (and workers) must take precautions to keep the workplace safe, workers' compensation insurance helps people deal with the financial implications of time away from work. Avian flu is a rare illness for American workers, but the disease could have serious consequences.

Find out about the effects Avian flu can have, and learn more about the factors that could influence a workers' compensation claim for this disease.

About Avian flu

Avian flu (commonly called bird flu) is a type A flu virus, which occurs naturally in aquatic birds. Scientists detect outbreaks in wild birds on a fairly regular basis, but the disease occasionally also spreads and infects humans. Only one serious pathogenic outbreak has occurred in the United States, when 7,000 chickens contracted the virus in Texas in 2004. In that case, doctors did not see any transmission to humans.

A few rare cases of human bird flu infection have occurred in the United States, after people came in close contact with infected birds. People with the virus can experience many symptoms, including severe respiratory disease and problems with several major organs. To date, only 359 people throughout the world have died from Avian flu, but many more have become ill.

Workers' compensation requirements

There are three key criteria you must meet to file a workers' compensation claim.

  • Employer insurance. State laws vary, but most American employers must hold workers' compensation insurance. Some states do not force businesses that employ one or two people to have this insurance, so if you are the sole worker in a company, state law may not allow you to make a workers' compensation claim. Also, some states don't force charities to hold this insurance.
  • Employment status. You can only file a claim for workers' compensation if you are a company employee. Full-time and part-time workers are eligible, but independent contractors cannot file a claim. 
  • Type of illness or injury. You must show that your illness is work-related. If you contracted the virus during working hours, then workers' compensation laws should protect you.

In all cases, you might need a workers' compensation lawyer to help you prove your case. If you catch bird flu, you may find it harder to prove your case than you would expect.

Objections an employer could make

While an employer cannot argue his or insurance status, he or she may battle the second two criteria.

Many employers describe workers as independent contractors, when they're actually employees. Under Workers' Compensation Law, the term employee normally includes borrowed employees, sub-contractors, leased employees and unpaid volunteers.

When challenging this, a lawyer will consider many factors including who has the right to control what you do, the sort of work you do and how your employer pays your wages. People who work on poultry farms often work under temporary or flexible contracts, so an employer may deny liability for any illness (like bird flu) you contract.

What's more, it's scientifically impossible to say when you caught a virus, so your employer may also argue against you. For example, if you came into contact with wild birds outside work, your employer's lawyer could argue that you cannot categorically prove your illness was work-related.

Your responsibilities

When you file a workers' compensation claim, a court will not normally consider if your conduct contributed to the illness or disease because the system works on a 'no-fault' basis. That aside, some courts rule against employees in certain situations. For example, if you got drunk, a court might decline your claim if your conduct directly caused an injury.

Your conduct is less likely to influence a case where an infection occurs, but a court may consider your conduct if you had used illegal drugs or alcohol. For example, scientists recommend a range of protective measures to prevent infection from bird flu. If you didn't use protective clothing correctly, and you were drunk, a court could rule that your inebriation put you at risk of infection.

Avian flu remains relatively uncommon across the United States, but some workers are at higher risk than others. To claim workers' compensation, you should always refer the case to a trained attorney because you may find yourself up against an employer who doesn't want to take responsibility.