Montana State Legislature
FAQ: COVID-19 and Impacts to Unemployment Insurance
Unemployment Insurance: Please see Legislative Service Division’s FAQ relating to statutes and COVID-19, available at: https://leg.mt.gov/covid-19-information/. This includes a discussion of the interplay between state and federal UI laws: https://leg.mt.gov/covid-19-information/montana-statutes-and-covid-19-faq/.
Generally, the Montana Department of Labor (Department) and Industry is tasked with administering Montana’s Unemployment Insurance program: https://dli.mt.gov/. The Department and Governor are vested with emergency powers in administering the UI program. Recently, the Department published emergency rules relating to the claims and payments of UI benefits: https://dli.mt.gov/Portals/57/Documents/24-11-355adp-emerg.pdf. To that end, the Department of Labor and Industry recently made a table relating to sick leave, UI, and workers’ compensation in relation to its emergency rules: http://dli.mt.gov/Portals/57/Documents/covid-19/COVID-19-ScenariosAndBenefits.pdf?ver=2020-03-18-113453-153. This is the general resource page for the DOL and COVID-19: http://dli.mt.gov/employer-covid-19. This page also includes information for how to file UI claims.
Similarly, the U.S. Department of Labor (U.S. Department) has a website providing employer resources in light of COVID-19: https://www.dol.gov/coronavirus. Specifically, the U.S. Department put out an FAQ relating to UI eligibility, providing scenarios: http://dli.mt.gov/Portals/57/Documents/UIPL-10-20.pdf?ver=2020-03-16-153629-757. However, as a general guideline, the U.S. Department stated that “UI is not intended to be used as a paid sick leave.” The Department’s FAQ provided guidance on UC relating to COVID-19:
- Determining whether an individual is “unemployed”;
- Determining if the individual is able to work, available for work, and actively seeking work;
- Examples for assessing UC eligibility;
- Employer charging, with consideration for impact on trust fund solvency;
- Impact of eliminating the waiting week; and
- Promotion of Short-Time Compensation
Public Law No. 116-127, https://www.congress.gov/bill/116th-congress/house-bill/6201/text?loclr=bloglaw the Families First Coronavirus Response Act, expands unemployment benefits and provides an estimated $6.2 million in grants to Montana for processing and paying claims for unemployment.
Reimbursement for Employers of Employees: In a recent email, representative Jones asked about available state and federal programs that seek to reimburse employers and employees for costs associated with COVID-19. This may be referring to the Short-Time Compensation program (STC). This program is referenced in the U.S. Department’s FAQ: http://dli.mt.gov/Portals/57/Documents/UIPL-10-20.pdf?ver=2020-03-16-153629-757 (under heading 4-f). Here, the U.S. Department provides that the STC helps employers avert layoffs. The program allows employers with a state-approved STC plan to reduce the hours of their employees in lieu of layoffs, while permitting the employees to receive payment for partial unemployment.
Medical benefits/Sick Leave: Public Law No. 116-127, requires employers of less than 500 employees to provide paid sick leave for employees that:
- Are under a quarantine or isolation order related to COVID19
- Are advised by a health care provider to self-quarantine due to COVID19
- Have COVID19 symptoms and are seeking a medical diagnosis
- Are caring for a child due to a school closing for COVID19 or because a child care provider is unavailable due to COVID19
According to White House officials, employers will be able to credit the sick leave payments against their withholding taxes due to the federal government as a method of funding the new sick and family leave requirement. Exceptions may be granted for employers of less than 50 employees/
Further information on sick leave:
The U.S. Department stated that UI is not to be used as paid sick leave. The Montana Department of Labor and Industry, has issued a FAQ on sick leave : http://dli.mt.gov/Portals/57/Documents/covid-19/COVID-19-ScenariosAndBenefits.pdf?ver=2020-03-18-113453-153. As you can see, this document provides that sick leave covers most ailments related to COVID-19. That notwithstanding, the Congressional Research Office published a paper on March 17, 2020, summarizing Paid Leave and Unemployment Insurance Responses: https://www.nelsonmullins.com/storage/GqsHxxEJr1UirnQVAkXRXULw4Ex09MF1PjUqeliv.pdf. This paper was published in response by Public Law No. 116-127: https://www.congress.gov/bill/116th-congress/house-bill/6201/text?loclr=bloglaw. This bill contains two paid leave provisions: (1) Providing for paid family and medical leave in certain instances; and (2) providing for paid sick leave for a similar but more expansive set of needs. Both provisions allow employers of health care providers and emergency responders to exclude such employees from the application of the leave provisions. Please refer to the summary for further and more specific details.
Loan or Grant Program: The Small Business Administration (SBA) is making economic injury disaster loans of up to $2.0 million per small business available for small businesses that qualify. Small businesses can apply at https://www.sba.gov/funding-programs/disaster-assistance. Payments on these loans will be deferred for a year. There is also discussion at the federal level about allowing standard SBA loan payments to be deferred for 6 months.
Public Law No 116-127 (Families First Coronavirus Response Act) also establishes requirements for providing coronavirus diagnostic testing at no cost to consumers, treat personal respiratory protective devices as covered countermeasures that are eligible for certain liability protections, and temporarily increases the Medicaid federal medical assistance percentage (FMAP): , https://www.congress.gov/bill/116th-congress/house-bill/6201/text?loclr=bloglaw
This topic of law involves state and federal statutes, administrative rules, agency guidelines, and case law. Any one answer is dependent on many underlying facts presented.
Generally and assuming that the employer is covered by workers’ compensation insurance, 39-71-401 and 39-71-411 provide that workers’ compensation is the exclusive remedy and will generally protect the employer from a lawsuit from an employee:
39-71-401. Employments covered and exemptions — elections — notice. (1) Except as provided in subsection (2), the Workers' Compensation Act applies to all employers and to all employees. An employer who has any employee in service under any appointment or contract of hire, expressed or implied, oral or written, shall elect to be bound by the provisions of compensation plan No. 1, 2, or 3 unless the provisions of 39-71-442 apply. Each employee whose employer is bound by the Workers' Compensation Act is subject to and bound by the compensation plan that has been elected by the employer.
(2) Unless the employer elects coverage for these employments under this chapter and an insurer allows an election, the Workers' Compensation Act does not apply to any of the following:
(a) household or domestic employment;
(b) casual employment;
(c) employment of a dependent member of an employer's family for whom an exemption may be claimed by the employer under the federal Internal Revenue Code;
(d) employment of sole proprietors, working members of a partnership, working members of a limited liability partnership, or working members of a member-managed limited liability company, except as provided in subsection (3);
(e) employment of a real estate, securities, or insurance salesperson paid solely by commission and without a guarantee of minimum earnings;
(f) employment as a direct seller as defined by 26 U.S.C. 3508;
(g) employment for which a rule of liability for injury, occupational disease, or death is provided under the laws of the United States;
(h) employment of a person performing services in return for aid or sustenance only, except employment of a volunteer under 67-2-105;
(i) employment with a railroad engaged in interstate commerce, except that railroad construction work is included in and subject to the provisions of this chapter;
(j) employment as an official, including a timer, referee, umpire, or judge, at an amateur athletic event;
(k) employment of a person performing services as a newspaper carrier or freelance correspondent if the person performing the services or a parent or guardian of the person performing the services in the case of a minor has acknowledged in writing that the person performing the services and the services are not covered. As used in this subsection (2)(k):
(i) "freelance correspondent" means a person who submits articles or photographs for publication and is paid by the article or by the photograph; and
(ii) "newspaper carrier":
(A) means a person who provides a newspaper with the service of delivering newspapers singly or in bundles; and
(B) does not include an employee of the paper who, incidentally to the employee's main duties, carries or delivers papers.
(l) cosmetologist's services and barber's services as referred to in 39-51-204(1)(e);
(m) a person who is employed by an enrolled tribal member or an association, business, corporation, or other entity that is at least 51% owned by an enrolled tribal member or members, whose business is conducted solely within the exterior boundaries of an Indian reservation;
(n) employment of a jockey who is performing under a license issued by the board of horseracing from the time that the jockey reports to the scale room prior to a race through the time that the jockey is weighed out after a race if the jockey has acknowledged in writing, as a condition of licensing by the board of horseracing, that the jockey is not covered under the Workers' Compensation Act while performing services as a jockey;
(o) employment of a trainer, assistant trainer, exercise person, or pony person who is performing services under a license issued by the board of horseracing while on the grounds of a licensed race meet;
(p) employment of an employer's spouse for whom an exemption based on marital status may be claimed by the employer under 26 U.S.C. 7703;
(q) a person who performs services as a petroleum land professional. As used in this subsection, a "petroleum land professional" is a person who:
(i) is engaged primarily in negotiating for the acquisition or divestiture of mineral rights or in negotiating a business agreement for the exploration or development of minerals;
(ii) is paid for services that are directly related to the completion of a contracted specific task rather than on an hourly wage basis; and
(iii) performs all services as an independent contractor pursuant to a written contract.
(r) an officer of a quasi-public or a private corporation or, except as provided in subsection (3), a manager of a manager-managed limited liability company who qualifies under one or more of the following provisions:
(i) the officer or manager is not engaged in the ordinary duties of a worker for the corporation or the limited liability company and does not receive any pay from the corporation or the limited liability company for performance of the duties;
(ii) the officer or manager is engaged primarily in household employment for the corporation or the limited liability company;
(iii) the officer or manager either:
(A) owns 20% or more of the number of shares of stock in the corporation or owns 20% or more of the limited liability company; or
(B) owns less than 20% of the number of shares of stock in the corporation or limited liability company if the officer's or manager's shares when aggregated with the shares owned by a person or persons listed in subsection (2)(r)(iv) total 20% or more of the number of shares in the corporation or limited liability company; or
(iv) the officer or manager is the spouse, child, adopted child, stepchild, mother, father, son-in-law, daughter-in-law, nephew, niece, brother, or sister of a corporate officer who meets the requirements of subsection (2)(r)(iii)(A) or (2)(r)(iii)(B);
(s) a person who is an officer or a manager of a ditch company as defined in 27-1-731;
(t) service performed by an ordained, commissioned, or licensed minister of a church in the exercise of the church's ministry or by a member of a religious order in the exercise of duties required by the order;
(u) service performed to provide companionship services, as defined in 29 CFR 552.6, or respite care for individuals who, because of age or infirmity, are unable to care for themselves when the person providing the service is employed directly by a family member or an individual who is a legal guardian;
(v) employment of a person performing the services of an intrastate or interstate common or contract motor carrier when hired by an individual or entity who meets the definition of a broker or freight forwarder, as provided in 49 U.S.C. 13102;
(w) employment of a person who is not an employee or worker in this state as defined in 39-71-118(8);
(x) employment of a person who is working under an independent contractor exemption certificate;
(y) employment of an athlete by or on a team or sports club engaged in a contact sport. As used in this subsection, "contact sport" means a sport that includes significant physical contact between the athletes involved. Contact sports include but are not limited to football, hockey, roller derby, rugby, lacrosse, wrestling, and boxing.
(z) a musician performing under a written contract.
(3) (a) (i) A person who regularly and customarily performs services at locations other than the person's own fixed business location shall elect to be bound personally and individually by the provisions of compensation plan No. 1, 2, or 3 unless the person has waived the rights and benefits of the Workers' Compensation Act by obtaining an independent contractor exemption certificate from the department pursuant to 39-71-417.
(ii) Application fees or renewal fees for independent contractor exemption certificates must be deposited in the state special revenue account established in 39-9-206 and must be used to offset the certification administration costs.
(b) A person who holds an independent contractor exemption certificate may purchase a workers' compensation insurance policy and with the insurer's permission elect coverage for the certificate holder.
(c) For the purposes of this subsection (3), "person" means:
(i) a sole proprietor;
(ii) a working member of a partnership;
(iii) a working member of a limited liability partnership;
(iv) a working member of a member-managed limited liability company; or
(v) a manager of a manager-managed limited liability company that is engaged in the work of the construction industry as defined in 39-71-116.
(4) (a) A corporation or a manager-managed limited liability company shall provide coverage for its employees under the provisions of compensation plan No. 1, 2, or 3. A quasi-public corporation, a private corporation, or a manager-managed limited liability company may elect coverage for its corporate officers or managers, who are otherwise exempt under subsection (2), by giving a written notice in the following manner:
(i) if the employer has elected to be bound by the provisions of compensation plan No. 1, by delivering the notice to the board of directors of the corporation or to the management organization of the manager-managed limited liability company; or
(ii) if the employer has elected to be bound by the provisions of compensation plan No. 2 or 3, by delivering the notice to the board of directors of the corporation or to the management organization of the manager-managed limited liability company and to the insurer.
(b) If the employer changes plans or insurers, the employer's previous election is not effective and the employer shall again serve notice to its insurer and to its board of directors or the management organization of the manager-managed limited liability company if the employer elects to be bound.
(5) The appointment or election of an employee as an officer of a corporation, a partner in a partnership, a partner in a limited liability partnership, or a member in or a manager of a limited liability company for the purpose of exempting the employee from coverage under this chapter does not entitle the officer, partner, member, or manager to exemption from coverage.
(6) Each employer shall post a sign in the workplace at the locations where notices to employees are normally posted, informing employees about the employer's current provision of workers' compensation insurance. A workplace is any location where an employee performs any work-related act in the course of employment, regardless of whether the location is temporary or permanent, and includes the place of business or property of a third person while the employer has access to or control over the place of business or property for the purpose of carrying on the employer's usual trade, business, or occupation. The sign must be provided by the department, distributed through insurers or directly by the department, and posted by employers in accordance with rules adopted by the department. An employer who purposely or knowingly fails to post a sign as provided in this subsection is subject to a $50 fine for each citation.
39-71-411. Provisions of chapter exclusive remedy — nonliability of insured employer. For all employments covered under the Workers' Compensation Act or for which an election has been made for coverage under this chapter, the provisions of this chapter are exclusive. Except as provided in part 5 of this chapter for uninsured employers and except as otherwise provided in the Workers' Compensation Act, an employer is not subject to any liability whatever for the death of or personal injury to an employee covered by the Workers' Compensation Act or for any claims for contribution or indemnity asserted by a third person from whom damages are sought on account of the injuries or death. The Workers' Compensation Act binds the employee and, in case of death, binds the employee's personal representative and all persons having any right or claim to compensation for the employee's injury or death, as well as the employer and the servants and employees of the employer and those conducting the employer's business during liquidation, bankruptcy, or insolvency.
Additionally, employers in the private sector have a general duty under OSHA to provide a safe workplace, including infectious diseases. OSHA has prepared this guidance relating to preparing workplaces for COVID-19: https://www.osha.gov/Publications/OSHA3990.pdf.
A little less on point, Montana has enacted the Montana Safety Culture Act (MSCA), 39-71-1501 through 39-71-1508. The legislature appears to have considered infectious diseases in 39-71-1503(2)(f):
39-71-1503. Safety consultation. (1) As used in this part, "safety consultation services" means assistance rendered by an insurer or the department to advise and aid an employer in the identification, evaluation, and control of existing and potential accidental and occupational health problems. The services may be delivered in person, by mail, electronically, or by telephone, based upon need.
(2) Safety consultation services include but are not limited to:
(a) surveys consisting of onsite identification and subsequent evaluation of exposures relative to employees, materials, equipment, work methods, processes, and facilities;
(b) recommendations expressed in the form of communications to an employer, with reference to control of exposures to occupational accident, injury, or illness and to improvement of safety programs and systems;
(c) education and training programs, including aids, programs, and materials made available to assist in the control of exposures;
(d) consultations to advise employers relative to risk, exposure, and experience in the employer's business;
(e) accident analysis consisting of review of reported accidents to determine cause and trends; and
(f) industrial hygiene services, including recognition, evaluation, and control of chemical, physical, and biological exposures.
The MSCA generally seeks to reduce workers’ compensation claims in the workplace:
39-71-1502. Purpose. The purpose of this part is to reduce the incidence of occupational injury and illness by promoting safety in the workplace in order to control the costs of claims for workers' compensation insurance. The creation of a safety culture requires employers to provide training and education to make safety awareness part of the requirement for each worker's satisfactory job performance and requires the department to promote safety awareness for the public through the education and preparation of each student for entrance into the labor market. A reduction in workplace injuries, illnesses, and deaths through enhanced safety on the job benefits the public as well as the employers and the employees by lowering both financial and physical costs. Ensuring immunity to insurers in the provision of safety consultation services encourages and promotes safety in the workplace and improves the relationship between employers and employees.
Additionally, the MSCA provides for an insurer’s immunity from lawsuits – as it relates to the furnishing or failure to furnish a safety consultation service:
39-71-1508. Safety consultation services — insurer's exemption from civil liability — exceptions. (1) The furnishing of or the failure to furnish safety consultation services related to, in connection with, or incidental to a workers' compensation insurance contract or agreement to provide workers' compensation coverage does not subject the insurer or its agents, employees, or service contractors to liability for damages from injury, loss, or death, whether direct or consequential, occurring as a result of any act or omission by any person in the course of providing safety consultation services.
(2) Subsection (1) does not apply:
(a) if the injury, loss, or death occurred during the actual performance of safety consultation services and was directly and proximately caused by the negligence of the insurer or its agents, employees, or service contractors;
(b) to any safety consultation services required to be performed under the provisions of a written service contract for which a specific charge is made and not incidental to a policy of insurance; or
(c) in an action against an insurer or its agents, employees, or service contractors for damages caused by the act or omission of the insurer or its agents, employees, or service contractors in which it is judicially determined that the act or omission constituted a crime or involved actual malice.
The simple answer to this is elusive. Generally, the answer is yes, if the employee can demonstrate the occupational exposure is the major contributing cause of the disease. As you can see in the Department’s guidance below, it appears that health care professionals have a clear path to demonstrating that their employment was a major cause of contracting the disease. It is less clear for a non-health care worker. Montana Code Annotated 39-71-407(12)(b) provides that the occupational exposure must be the major contributing cause:
39-71-407. (Temporary) Liability of insurers — limitations. (1) For workers' compensation injuries, each insurer is liable for the payment of compensation, in the manner and to the extent provided in this section, to an employee of an employer covered under plan No. 1, plan No. 2, and the state fund under plan No. 3 that it insures who receives an injury arising out of and in the course of employment or, in the case of death from the injury, to the employee's beneficiaries, if any.
(2) An injury does not arise out of and in the course of employment when the employee is:
(a) on a paid or unpaid break, is not at a worksite of the employer, and is not performing any specific tasks for the employer during the break; or
(b) engaged in a social or recreational activity, regardless of whether the employer pays for any portion of the activity. The exclusion from coverage of this subsection (2)(b) does not apply to an employee who, at the time of injury, is on paid time while participating in a social or recreational activity or whose presence at the activity is required or requested by the employer. For the purposes of this subsection (2)(b), "requested" means the employer asked the employee to assume duties for the activity so that the employee's presence is not completely voluntary and optional and the injury occurred in the performance of those duties.
(3) (a) Subject to subsection (3)(c), an insurer is liable for an injury, as defined in 39-71-119, only if the injury is established by objective medical findings and if the claimant establishes that it is more probable than not that:
(i) a claimed injury has occurred; or
(ii) a claimed injury has occurred and aggravated a preexisting condition.
(b) Proof that it was medically possible that a claimed injury occurred or that the claimed injury aggravated a preexisting condition is not sufficient to establish liability.
(c) Objective medical findings are sufficient for a presumptive occupational disease as defined in 39-71-1401 but may be overcome by a preponderance of the evidence.
(4) (a) An employee who suffers an injury or dies while traveling is not covered by this chapter unless:
(i) the employer furnishes the transportation or the employee receives reimbursement from the employer for costs of travel, gas, oil, or lodging as a part of the employee's benefits or employment agreement and the travel is necessitated by and on behalf of the employer as an integral part or condition of the employment; or
(ii) the travel is required by the employer as part of the employee's job duties.
(b) A payment made to an employee under a collective bargaining agreement, personnel policy manual, or employee handbook or any other document provided to the employee that is not wages but is designated as an incentive to work at a particular jobsite is not a reimbursement for the costs of travel, gas, oil, or lodging, and the employee is not covered under this chapter while traveling.
(5) Except as provided in subsection (6), an employee is not eligible for benefits otherwise payable under this chapter if the employee's use of alcohol or drugs not prescribed by a physician is the major contributing cause of the accident.
(6) (a) An employee who has received written certification, as defined in 50-46-302, from a physician for the use of marijuana for a debilitating medical condition and who is otherwise eligible for benefits payable under this chapter is subject to the limitations of subsections (6)(b) through (6)(d).
(b) An employee is not eligible for benefits otherwise payable under this chapter if the employee's use of marijuana for a debilitating medical condition, as defined in 50-46-302, is the major contributing cause of the injury or occupational disease.
(c) Nothing in this chapter may be construed to require an insurer to reimburse any person for costs associated with the use of marijuana for a debilitating medical condition, as defined in 50-46-302.
(d) In an accepted liability claim, the benefits payable under this chapter may not be increased or enhanced due to a worker's use of marijuana for a debilitating medical condition, as defined in 50-46-302. An insurer remains liable for those benefits that the worker would qualify for absent the worker's use of marijuana for a debilitating medical condition.
(7) The provisions of subsection (5) do not apply if the employer had knowledge of and failed to attempt to stop the employee's use of alcohol or drugs not prescribed by a physician. This subsection (7) does not apply to the use of marijuana for a debilitating medical condition because marijuana is not a prescribed drug.
(8) If there is no dispute that an insurer is liable for an injury but there is a liability dispute between two or more insurers, the insurer for the most recently filed claim shall pay benefits until that insurer proves that another insurer is responsible for paying benefits or until another insurer agrees to pay benefits. If it is later proven that the insurer for the most recently filed claim is not responsible for paying benefits, that insurer must receive reimbursement for benefits paid to the claimant from the insurer proven to be responsible.
(9) If a claimant who has reached maximum healing suffers a subsequent nonwork-related injury to the same part of the body, the workers' compensation insurer is not liable for any compensation or medical benefits caused by the subsequent nonwork-related injury.
(10) Except for cases of presumptive occupational disease as provided in 39-71-1401 and 39-71-1402, an employee is not eligible for benefits payable under this chapter unless the entitlement to benefits is established by objective medical findings that contain sufficient factual and historical information concerning the relationship of the worker's condition to the original injury.
(11) (a) For occupational diseases, every employer enrolled under plan No. 1, every insurer under plan No. 2, or the state fund under plan No. 3 is liable for the payment of compensation, in the manner and to the extent provided in this chapter, to an employee of an employer covered under plan No. 1, plan No. 2, or the state fund under plan No. 3 if the employee is diagnosed with a compensable occupational disease.
(b) The provisions of subsection (11)(a) apply to presumptive occupational disease if the employee is diagnosed and meets the conditions of 39-71-1401 and 39-71-1402.
(12) An insurer is liable for an occupational disease only if the occupational disease:
(a) is established by objective medical findings; and
(b) arises out of or is contracted in the course and scope of employment. An occupational disease is considered to arise out of or be contracted in the course and scope of employment if the events occurring on more than a single day or work shift are the major contributing cause of the occupational disease in relation to other factors contributing to the occupational disease. For the purposes of this subsection (12), an occupational disease is not the same as a presumptive occupational disease.
(13) When compensation is payable for an occupational disease or a presumptive occupational disease, the only employer liable is the employer in whose employment the employee was last injuriously exposed to the hazard of the disease.
(14) When there is more than one insurer and only one employer at the time that the employee was injuriously exposed to the hazard of the disease, the liability rests with the insurer providing coverage at the earlier of:
(a) the time that the occupational disease or presumptive occupational disease was first diagnosed by a health care provider; or
(b) the time that the employee knew or should have known that the condition was the result of an occupational disease or a presumptive occupational disease.
(15) In the case of pneumoconiosis, any coal mine operator who has acquired a mine in the state or substantially all of the assets of a mine from a person who was an operator of the mine on or after December 30, 1969, is liable for and shall secure the payment of all benefits that would have been payable by that person with respect to miners previously employed in the mine if acquisition had not occurred and that person had continued to operate the mine, and the prior operator of the mine is not relieved of any liability under this section.
(16) As used in this section, "major contributing cause" means a cause that is the leading cause contributing to the result when compared to all other contributing causes. (Void on occurrence of contingency—sec. 7, Ch. 158, L. 2019.)
The Department of Labor and Industry released a helpful infographic relating to worker’s compensation coverage of employees as it relates to COVID-19: http://dli.mt.gov/Portals/57/Documents/covid-19/COVID-19-ScenariosAndBenefits.pdf?ver=2020-03-18-113453-153. Additionally, the Department released an FAQ: http://dli.mt.gov/Portals/57/Documents/covid-19/workers-comp-coverage.pdf?ver=2020-03-19-155319-430. Here, the Department stated that workers’ compensation probably does not cover most workers who might become infected by COVID-19. However and as opined upon above, the exception would likely be for health care and emergency medical services workers who would have been placed in a higher risk of exposure through their covered employment. The Department further states that a worker would have to demonstrate that their job put them at a significantly greater risk for infection than the risk they have already through daily contact and exposure to the population in general.