Nebraska Supreme Court Ruling on COVID-19 Workers' Compensation Claim

In the recent decision, Thiele v. Select Medical Corp., the Nebraska Supreme Court overturned the denial of a woman's workers' compensation claim for a COVID-19 infection.

Christine Thiele contracted COVID-19 in April 2020 while working as a nurse liaison at a critical care recovery hospital in Omaha. Thiele filed a Petition in the Nebraska Workers' Compensation Court alleging that COVID-19 is an occupational disease caused by her work and that she is entitled to benefits as a result of her exposure.

"Occupational disease" is defined in Section 48-151(3) as "disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment, and excludes all ordinary diseases of life to which the general public is exposed."

Initially, the Nebraska Workers Compensation Board denied her claim, ruling that COVID-19 was not to be considered an occupational disease. However, Thiel appealed, and the Nebraska Supreme Court reversed the dismissal of her case, finding that COVID-19 was still rare enough to be considered a particular risk for healthcare workers at the time of symptoms' contraction.

The Court's decision was split 4-3, with three justices endorsing one opinion considered the lead opinion; the result was that the trial judge should not have dismissed Thiel's claim and allowed the case to proceed to trial. Three justices dissented with the reasoning and result of the lead opinion. Ultimately, this decision does not resolve the ongoing debate about whether COVID-19 can be considered an occupational disease under the Nebraska Workers' Compensation Act.

The lead opinion introduced a new legal principle. It argued that when determining whether an illness is an 'ordinary disease of life,' the focus should be on the period of exposure prior to contraction or onset of symptoms, rather than the circumstances at the time of the hearing. In Thiel's case, this meant that the trial judge should have considered when she contracted the virus in 2020, a time when healthcare workers faced a heightened risk of exposure, rather than when the Petition was filed in 2022.

On the other hand, the three justices who dissented emphasized that COVID-19 has always spread in the same way; any person-to-person interaction carries the risk of contracting COVID-19 and found that COVID-19 cannot be considered anything other than an ordinary disease of life, regardless of the time period.

Thiel's case, while not providing binding authority or clarity on whether COVID-19 should be considered an occupational disease, does offer a starting point for future cases. The Court's opinion suggests that when determining if an illness, specifically COVID-19, is an ordinary disease of life, one must focus on the period of exposure. This interpretation could potentially influence future workers' compensation claims related to COVID-19.

Mandatory Vaccination and Testing Requirements for Private Employers with Over 100 Employees

• OSHA issued its Emergency Temporary Standard (ETS) regarding Covid-19 vaccination and testing requirements on November 4, 2021. 

• The OSHA ETS will take effect immediately, but most requirements do not kick in until January 4, 2022, or thirty (60) days after the date the ETS was published in the Federal Register.  By January 4, 2022, employers will be required to comply with the vaccination requirements. 

• After sixty (60) days, employers must comply with all testing requirements for those employees who have not become fully vaccinated.   

• This new vaccination and testing mandate will apply to all employers with more than 100 employees, and to all federal contractors. 

• It will not apply to employees who either work at home or work outdoors. 

• Covered employers will have two options, the first being to mandate that all employees not working at home or outdoors must be fully vaccinated by January 4, 2022. 

• There is an exemption to the vaccination requirement for those employees who are entitled to a reasonable accommodation due to a sincerely held religious belief, i.e., active practice of a recognized religion and a valid religious objection. 

• An exemption will also be provided for any employee who has valid medical certification from a licensed healthcare provider that the employee should not receive the vaccination either because of a specific medical condition or disability.   

• Under the vaccination requirement, employees must provide proof of vaccination either through a CDC Vaccination Record Card, or other medical records of immunizations received, documentation from a certified pharmacy, or other source. 

• The vaccination must be one of the FDA approved vaccinations, i.e., Pfizer, Moderna or Johnson & Johnson. 

• Any employee who refuses to be vaccinated will have an alternative method of compliance with the mandate by wearing a mask at all times when they are not either in a personal office with the door closed, or eating or drinking, in combination with providing proof of a valid negative SARS test for Covid every seven (7) days. 

• There is no requirement that employers pay for the regular testing. 

• The OSHA ETS requires that all employers provide up to four (4) hours of paid time off for employees to get vaccinated, including travel time, as well as provision of reasonable paid time off to recover from any illness or side effects as a result of receiving the vaccination.   

• Any employee who has tested positive for Covid-19 in a SARS test or otherwise diagnosed with Covid by a licensed health practitioner will not be subject to testing for a period of ninety (90) days following any such positive diagnosis, due to the high incidence of false positives for ninety (90) days after a Covid infection. 

• All employers are required to establish a written policy concerning the mandatory vaccination requirement, and an alternative policy outlining the only exemptions the Mandatory Vaccination Requirement which allows employees to avoid the vaccination mandate by wearing a mask at all times in the workplace, unless in a private office with the door closed or eating, drinking, etc., and provision of proof of regular negative tests for Covid-19 every seven (7) days. 

• Covered employers found to be in violation may be fined up to $13,653 for each violation, and any covered employer found to have willfully or repetitively violate the standards may be fined up to $136,532.

 Our labor and employment law experts at Erickson | Sederstrom, P.C., LLO, can assist you with development of the required policies and on-going compliance with this new OSHA ETS Mandate.