Occupational Disease and the Traveling Employee

Workers’ compensation laws and insurance policies provide employers with protections against lawsuits from employees who are injured on the job or develop an occupational disease related to their employment.  Without the protections provided by the workers’ compensation legal framework, employees would be required to sue their employers for damages whenever they were injured on the job or developed a chronic illness or condition that negatively impacted their ability to work.  While employers also benefit from the protections of workers’ compensation insurance by not having to defend against individual employee lawsuits, workers’ compensation insurance premiums are expensive and insurance companies look to manage claims in a cost-effective way.  Sometimes this works to the disadvantage of employees whose claims of occupational disease are denied due to uncertainty regarding causation.  A recent case involving Alaska Airlines and a flight attendant who contracted COVID while working on eight flights during the pandemic – four of those flights were transcontinental – illustrates the difficulty in establishing causation and workers’ compensation coverage for occupational diseases. 

            Lisa Azorit-Wortham, a flight attendant for Alaska Airlines, tested positive for COVID in early April.  She had worked eight flights, during which passengers and crew members were not required to wear masks, prior to her positive COVID test.  Lisa Azorit-Wortham filed a workers’ compensation claim, alleging that her illness met the definition of “occupational disease” under Washington’s workers’ compensation law.  In support of this claim, Azorit-Wortham stated that she had limited contact with others outside of her employment, making it unlikely that there was any cause other than her employment conditions that caused her to contract COVID.  The Department of Labor granted her claim and Alaska Airlines appealed.  An administrative law judge reversed the Department of Labor’s initial decision, finding that COVID did not qualify as an occupational disease.  The Industrial Board of Appeals affirmed the finding of the administrative law judge and Azorit-Wortham appealed. 

            At issue on appeal was whether the “traveling employee doctrine” applied to Azorit-Wortham’s situation. Under the traveling employee doctrine, employees are covered by workers’ compensation throughout the duration of a business trip, including time spent traveling, staying in hotels, and eating meals.  Alaska Airlines took the position that this doctrine only applied to sudden injuries and not to occupational illnesses that develop over time, arguing that the statutory definition of occupational disease requires that the illness arise from distinctive conditions of employment and not from everyday life.  The trial court judge rejected Alaska Airlines position and submitted the case to the jury without limiting the application of the traveling employee doctrine as requested by the airline.  Ultimately, the jury found in favor of the flight attendant. 

            Alaska Airlines appealed the jury’s verdict to the Court of Appeals, who reversed it and held that the traveling employee doctrine did not apply in this situation and sent the case back for a new trial.  The Washington Supreme Court overruled the Court of Appeals and stated that the traveling employee doctrine does apply to occupational diseases.  In its decision, the Washington Supreme Court specifically held that the doctrine only acted to define the period during which the traveling coverage is in effect and that the statutory definition of an occupational disease, which addresses whether the disease arose naturally and proximately from the employee’s employment, remain unchanged by the traveling employee doctrine.  The Court further justified its decision by noting the workers’ compensation statute must be interpreted liberally in favor of coverage where possible and that such a favorable reading is in keeping with the intent and purpose of the law. 

            While this case is specific to Washington State, the Washington Supreme Court’s interpretation and application of the workers’ compensation law are instructive to both employers and workers’ compensation insurance carriers.  Cases where an employee can establish a causal relationship between the nature of their illness or injury and their terms and conditions of employment are more likely to be found to be covered by workers’ compensation.  At a time when employees and others may be experiencing long COVID and other chronic conditions related to the pandemic, this case could signify an increase in workers’ compensation claims and a corresponding increase in workers’ compensation insurance costs for employers.