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ALTHOUGH CONTRACTING COVID-19 IS COMPENSABLE UNDER WORKERS’ COMPENSATION, HERE THE PROOF THAT CLAIMANT CONTRACTED COVID-19 BECAUSE OF WORKPLACE EXPOSURE WAS INSUFFICIENT (THIRD DEPT). ​

The Third Department, reversing the Workers’ Compensation Board, determined the record did not support the finding that claimant, a school custodian, contracted COVID-19 from workplace exposure. The decision is fact-specific. Claimant had little contact with students during his work hours and there were other possible sources of infection:

We acknowledge that “the contraction of COVID-19 in the workplace is compensable under the Workers’ Compensation Law” … , that the issue of whether a compensable accident has occurred is a question of fact for the Board to resolve and that the Board’s findings in this regard, if supported by substantial evidence, will not be disturbed … . Additionally, our case law makes clear that where, as here, the injured claimant alleges that he or she contracted COVID-19 at work, such claimant “bears the burden of demonstrating either a specific exposure to COVID-19 or that COVID-19 was so prevalent in the work environment as to present an elevated risk of exposure constituting an extraordinary event” … ; “for example, workers with significant contact with the public in communities with high rates of infection or workers in a workplace experiencing high rates of infection” … .

… Although claimant’s job included cleaning various areas of the school and picking up supplies, he acknowledged that his only contact with students would occur while he was mopping the hallways, at which time approximately 20 students would pass by him on their way to the locker rooms. During the relevant time frame, no other member of claimant’s household tested positive for COVID-19, but claimant’s then-spouse worked in-person and did the grocery shopping, her son attended sporting events three days each week and claimant attended church each week with approximately 40 other people. Claimant, who did not wear a mask during church services, testified that his fellow attendees “wouldn’t have been [sitting] that close” to one another. The record is silent as to the rate of infection in either the school where claimant worked or the surrounding community.

Upon reviewing the record as a whole, we cannot say that the Board’s decision is supported by substantial evidence. As a starting point, the record is devoid of proof that there was a high rate of infection present in claimant’s work environment at the relevant point in time … . Further, claimant’s brief encounters with a passing group of students in a corridor falls short of the degree of regular, consistent and close interaction with the public at large necessary to sustain a finding of prevalence … . Finally, the record reflects that either claimant or members of his household engaged in other in-person pursuits during the relevant time period. Under these circumstances, the Board’s finding that claimant’s employment exposed him to an elevated risk of exposure to COVID-19 cannot stand. Matter of Angelo (Southwestern Cent. Sch.), 2025 NY Slip Op 05998, Third Dept 10-30-25

Practice Point: Contracting COVID-19 is compensable under Workers’ Compensation but claimant must present proof exposure at the workplace was the source of the infection, not the case here.​

 

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