A Hazard Distinct: DE Supremes reject COVID-19 as an Occupational Disease (on these facts)
In cases of occupational illness under Section 2361, it is all about the nature of the employment and don’t you forget it. The employment presenting a hazard “distinct from” and “greater than” employment in general, is a requirement for a finding of occupational disease with regard to COVID-19. Or any other disease for that matter. And emphasis on “distinct”….
The Supremes ruled last week in Carl Fowler v. Perdue, Inc., 2024 WL 3196775, (Del. 2024), following an employer victory below in both the IAB and the Superior Court. Pivotal to the outcome was the Supreme Court’s observation that:
“COVID-19 was not a natural incident of Fowler’s peculiar occupation as a boxer in the poultry industry.”
“There was no evidence presented that COVID-19 was distinctive to the environment of a poultry processing plant.”
“COVID-19 cannot be a hazard distinct from that of employment in general in a situation in which all other essential workers faced the same disease every day by attending employment.”
As an essential worker, the Court was satisfied that Fowler demonstrated a hazard “greater than” attending employment in general, but he did not establish a hazard “distinct from” the hazard attending employment in general, reinforcing the proposition of Air Mod Corp. v. Newton and Anderson v General Motors Corp., that it is a two-pronged analysis.
Dr. Bacon testified as to the contagion-fraught environment in a packed cafeteria resulting from an overabundance of workers sitting elbow-to-elbow, and the airborne spray of contamination produced by the act of eating, chewing, and spewing. The same circumstance would, however, apply to any crowded workplace cafeteria. Dr. Bacon specifically testified that contracting COVID in the lunchroom at Perdue produced the same risk as eating in any crowded cafeteria, be it at work or otherwise.
That said, Fowler does not stand for the proposition that COVID-19 is never an occupational disease, but one must establish the peculiar nature of the job. Examples of satisfaction of the two-part litmus test included contracting chronic interstitial nephritis from petroleum hydrocarbon, being exposed to macrobacterium avium intracellular in the poultry industry, with the Court then distinguishing the case of sarcoidosis arising out of mold and mildew exposure at a tire store.
So, here’s one for you — can it be argued that failure to vaccinate works a Section 2353 forfeiture? (Asking for a friend)
Happy summer!
Irreverently yours,
Cassandra Roberts
