As the world is being overwhelmed with questions surrounding the pandemic of COVID-19, the potential implications across several areas of law have resulted in many calls to our office with one common question: If someone believes they contracted COVID-19 at work, is that a compensable workers’ compensation claim?

Under South Dakota law, an “injury” is defined, in part, as “only injury arising out and in the course of the employment, and does not include a disease in any form except as it results from the injury.”  SDCL § 62-1-1(7). Thus, the COVID-19 is not an “injury” as defined by South Dakota law because it is a disease which is specifically excluded by the definition of injury.  Given that, the next step requires looking at the occupational disease statutes, analyzing whether COVID-19 is an occupational disease such that it would bring it under the purview of the workers’ compensation statutes.

The occupational disease statutes are found in Title 62, specifically SDCL 62-8.  The definition of occupational disease is found at SDCL § 62-8-1(6) which provides:

“Occupational disease,” a disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment and includes any disease due or attributable to exposure to or contact with any radioactive material by an employee in the course of employment.

How is that applied in practice? In Sauder v. Parkview Care Center, 2007 S.D. 103, 740 N.W.2d 878, the South Dakota Supreme Court quoted an earlier case from 1997, Zoss v. United Building Centers, Inc., 1997 S.D. 93, 566 N.W.2d 840, holding that before something may be classified as an occupational disease, the injury must be caused by a distinctive feature of the claimant’s occupation, not by the environmental conditions of the claimant’s workplace.  The Court went on to say that unless the condition is intrinsic to an occupation, one does not suffer from an occupational disease.  In Sauder, an individual was exposed to mold in her workplace and claimed to have developed a condition as a result.  In reaching its decision, the Court discussed that while the workplace may have exposed the woman to an environmental condition, it was not a distinctive feature of her occupation.

The Court addressed a similar situation in Sauer v. Tiffany Laundry & Dry Cleaners, 2001 S.D. 24, 622 N.W.2d 741, where the Court found that a laundry room worker did not prove that her rashes and breathing troubles were related to her work in a laundry room.  Therefore, these cases have set forth the framework by which COVID-19 claims would be analyzed.  This means that before someone could potentially receive workers’ compensation benefits for COVID-19, the claimant would be required to prove that COVID-19 was a recognized risk for someone in their specific job and peculiar to their employment.  Given the widespread nature of the virus and the fact that it has been officially recognized as a pandemic warranting the declaration of a national emergency, that will prove highly improbable.