As employers throughout New York resume in-person operations, they must also contend with COVID-19’s continuing presence as a risk to their workforce. While the virus’s transmission in New York has steadily declined since its April 2020 peak, ongoing levels of infection will persist until an effective treatment or vaccine is widely available. For many employers in the state, and particularly those operating workplaces where social distancing measures are difficult to maintain, employee infection in the workplace may be less of a possibility than an inevitability.

This reality has sparked an increased focus on the scope of the workers’ compensation system in New York, which provides cash and medical benefits to qualifying employees who become injured or ill in the course of employment. While workers’ compensation requires employers to cover benefits provided to eligible employees without regard to fault, the system also offers the advantage of providing the same employees’ exclusive remedy, barring a subsequent civil action (the “workers’ compensation bar”). The question of whether COVID-19 qualifies as a compensable illness consequently affects whether New York employers could be subject to increased workers’ compensation premiums, litigation risk or both.