Could Covid be considered a compensable disease?

Chris Fletcher examines the implications of a recent IIAC report, which found some workers might be at greater risk of contracting coronavirus based on their occupation

The Industrial Injuries Advisory Council (IIAC) concluded in its recent report that certain workplaces were at increased risk of Covid because of job and workplace characteristics, with higher infection rates found in healthcare, social care and transport workers. 

While it noted that coronavirus cannot be regarded as uniquely occupational, given that infection can occur in a number of non-workplace settings, it is a revealing report that should be of particular interest to insurers, public bodies and corporate entities that may face Covid infection claims now or in the future. 

Several countries have now recognised Covid as a work-related disease, with Belgium and Norway considering it to be a compensable occupational disease. Could the IIAC’s review for benefits purposes also have ramifications for the expected wave of workplace injury liability claims relating to infection?

Affected sectors

Much of the report’s research data is based upon death certificates, analysis reported by the UK Office for National Statistics and Health and Safety Executive data on the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR), with greater reliance placed on death data because of the relatively lower availability and quality of infection-only data.

Analysis based on death certificates showed workplace infection risks more than doubled in several occupations, including in the care sector, nursing, bus and taxi driving, food processing, retail work, local land national administration and security. 

Looking specifically at transport, the report notes that transportation workers with a public-facing role, such as bus and taxi drivers, had worse outcomes compared to transport workers without such a public-facing role, such as van and lorry drivers.

The large number of RIDDOR disease and death reports for Covid for these occupations mirrors the death data, with RIDDOR also providing evidence of high numbers of cases in other occupations such as education.

The report also noted that there is a clear association between particular occupations and increased risk of death from coronavirus, but the consistency and extent of the mortality data and the lack of adjustment for other factors that could impact this risk level, such as deprivation, means that the evidence is still fairly limited. Information regarding any link between occupation and risk of disability following Covid is “currently scarce”. 

However, the evidence of a doubling of risk in several occupations “indicates a pathway to potential prescription”. The IIAC recommends prescription if and when there is strong evidence that occupational exposures can cause disabling disease, on the balance of probabilities.

Protective measures

Abundant workplace Covid-safe guidance is available, partly based on likelihood and duration of exposure. It incorporates the now familiar risk management precautions, such as wearing face coverings, maintaining physical distance between workers and good ventilation. 

The report does acknowledge that because transmission may occur by multiple routes, “complete prevention for workers is not feasible”. It also notes that “while exposure levels vary in different workplaces, exposure is difficult to quantify”.

The future claims landscape

From a liability claims perspective, while the IIAC adopted a balance of probabilities approach for its report, this doesn’t mean that courts, if asked to assess causation in individual cases, will necessarily do the same – and the causation landscape remains one of the key challenges that claimants will have to navigate if pursuing Covid infection claims.

What the report does is reinforce predictions as to which sectors and jobs, beyond the health and care sector, may be the first for early exploration by claims management companies and the claimant market generally. Even as Covid infection rates continue to decrease, the fall-out from the pandemic, including within potential occupational disease claims, will be far reaching.

Chris Fletcher is a partner at BLM