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Steven J. Lauwers, Esq.
(603) 226-2600
Adam C. Varley, Esq.
(603) 226-2600


As businesses closed in the Spring of 2020, and then reopened later in the year, among the variety of challenges they faced was how to operate their businesses while keeping their employees safe.  Many of those with primarily office-based operations either kept their employees out of the office entirely or implemented policies that ensured effective social distancing and other mitigation measures.  But in other industries – such as healthcare and hospitality and groceries – keeping workers at home or at work in small numbers generally is not an option.  Given those circumstances, what liability risks do businesses face if, despite their best efforts, employees contract COVID-19 at work?  At least on this score, employers can take some comfort in the protections offered by the workers’ compensation system.   

This article briefly describes the structure of the workers’ compensation system and the implications this has in the current COVID environment.

  1. The Structure of the Workers’ Compensation System.

The concept of workers’ compensation insurance in the United States was derived from similar models that had been adopted in Europe in the late 19th century.[1]  Adoption in the United States stemmed from concerns of both employers and labor.  Employers were experiencing increasing workplace liability insurance premiums and state legislatures and courts were expanding employer liability or limiting defenses, while at the same time awards to employees could be unpredictable.[2]  Employees, on the other hand, faced delays and difficulties in proving employer negligence – a prerequisite to recovery – that could lead to wide variability in recovery.[3]  As a result, by 1921 all but 6 states had adopted some form of workers’ compensation system.[4]

In all but a handful of states today, workers’ compensation functions primarily through a private insurance market (or self-insurance permitted for eligible employers), with some type of residual market providing last resort coverage.[5]  The essence of the “bargain” reflected in the modern workers’ compensation system is that employees need only demonstrate that their injury or illness arose in the workplace without proving negligence by the employer, while the employer has the certainty of knowing that their liability for workplace injuries will be limited to the benefits provided by workers’ compensation insurance.

  1. Application of Workers’ Compensation to COVID Claims.

Workers’ compensation, and its limited liability structure, has come into focus in connection with the COVID-19 pandemic.  Employers have wanted certainty that they will not be exposed to additional liability if employees contract COVID-19 at work.  We describe here the manner in which this was specifically addressed in New Hampshire; however, we believe that a similar analysis would likely be applied in most other states.

In New Hampshire, this issue was raised specifically by the Governor’s Economic Re-Opening Task Force (the “Task Force”) in the Spring of 2020, as the Task Force was considering a limited re-opening.  In connection with those efforts, the Task Force asked the New Hampshire Attorney General’s Office (the “AG”) for an advisory opinion.  In its response, the AG noted that “[i]n soliciting input from the various business sectors, the Task Force learned that businesses are concerned about their exposure to liability from employees who contract COVID-19.”[6]

The specific questions presented by the Task Force were as follows:  (1) does state law provide liability protection for employers from employee personal injury claims?; and (2) does state law limit an employee’s ability to seek workers’ compensation benefits for illnesses, like COVID-19?

In answering the first question in the affirmative, the AG relied upon the provision in New Hampshire’s workers’ compensation that reflects the bargain described above.  Specifically, New Hampshire’s statute provides as follows:

An employee of an employer subject to this chapter shall be conclusively presumed to have accepted the provisions of this chapter and, on behalf of the employee or the employee's personal or legal representatives, to have waived all rights of action whether at common law or by statute or provided under the laws of any other state or otherwise:
(a) Against the employer or the employer's insurance carrier or an association or group providing self-insurance to a number of employers; and
(b) Except for intentional torts, against any officer, director, agent, servant or employee acting on behalf of the employer or the employer's insurance carrier or an association or group providing self-insurance to a number of employers.[7]

The statute further provides that the spouse of any employee is similarly prohibited from recovering damages from the employer with respect to a workplace illness or injury covered under the workers’ compensation statute.[8]  The AG Opinion identifies this statutory provision as evidencing that the workers’ compensation system representing the exclusive remedy for employees.[9]  This “system provides employees with lost wages and lost wages without regard to an individualized assessment of fault in exchange for insulating employers from tortious fault.”[10]  The Opinion concludes its response to this question by noting that “[t]o the extent there is any liability for a workplace illness or injury or its effects that liability is wholly contained within the realm of benefits afforded through RSA 281-A.”[11]

On the second question, the AG Opinion reiterates that, to be compensable under the workers’ compensation statute, an illness or injury must arise out of and in the course of employment, not simply from the bare existence of employment.[12]  The determination of whether COVID-19 would be compensable would be, like any other illness, a fact-based inquiry.  Under New Hampshire law, the AG Opinion concluded that COVID-19 would be a “neutral” risk, because exposure to and acquisition of the virus would not be exclusive to employment.[13]  Whether an employer would have workers’ compensation liability will hinge on whether the risk of COVID-19 in the workplace is greater than that to which the general public is exposed.[14]  If an employer demonstrates that it is reasonably complying with federal and state guidelines related to COVID-19, this may be sufficient to put the COVID-19 risk outside of the workers’ compensation statute.[15]

The AG Opinion thus stands for the propositions that:  (1) employer liability to employees for COVID-19, if any, would be confined to the employee’s remedies under the workers compensation statute[16]; and (2) the employer may not even have liability within that framework, to the extent that it takes steps to comply with applicable guidelines to mitigate the risk of COVID-19 spread.  Importantly, the AG Opinion would seem to indicate that if an employer successfully demonstrates that the illness is not compensable under the statute, the employer is absolved of all liability; i.e., that the employee would be limited to any appeal rights under the workers’ compensation statute, without creating any separate claim against the employer.[17]

  1. Conclusion.

The workers’ compensation system has proved to be an important factor in businesses being able to successfully reopen, and it will likely remain important for some time yet.  Although workers’ compensation claims related to COVID-19 have varied widely across states, states consistently saw a decrease in non-COVID related claims in 2020 as compared to the same time period in 2019.[18]  And claims have been particularly pronounced among employees in service industries, particularly in the health care sector.[19]  Given these realities, we can expect to see employers and employees relying on workers’ compensation widely, if inconsistently, until there has been wide distribution of a vaccine.


[1] Ann Clayton, Workers Compensation:  A Background for Social Security Professionals, Social Security Bulletin, Vol. 65, No. 4 (2003/2004).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] New Hampshire Attorney General Opinion No. 2020-02 (May 22, 2020), at pg. 1.

[7] NH Revised Statutes Annotated (“RSA”) 281-A:8, I.

[8] NH RSA 281-A:8, II.

[9] Ibid. note 6, at pg. 3.

[10] Id. at pg. 4 (citing NH RSA 281-A:8 and Alonzi v. Northeast Generation Services Co., 156 N.H. 656, 664 (2008)).

[11] Id. at pg. 4.

[12] Id. at pg. 4.

[13] Id. at pg. 5.

[14] Id. at pg. 5.

[15] Id. at pg. 5.

[16] Id. at pp. 5-6.

[17] This is subject to the limited exceptions in the workers’ compensation statute, including intentional torts by representative of the employer.

[18] How COVID Effect on Workers Compensation Claims has Varied by State, Industry, Insurance Journal (Jan. 14, 2021).

[19] Id.