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Is Coronavirus (COVID-19) Covered by Workers’ Compensation? |
Blog by Gillian Katsumi
April 10, 2020
Does Workers’ Compensation cover an employee who contracts Coronavirus (COVID-19) at work? With cases of the new disease proliferating in North Carolina, employers and employees are scrambling to learn how to protect themselves, medically and legally. North Carolinians must transition from preparing for this pandemic to actively fighting it, and then, to recovering from it. Soon, it is very likely that an employee in North Carolina will contract COVID-19 at work and that such employee will file a Workers’ Compensation claim against their employer. Unfortunately, North Carolina has one of the most restrictive Workers’ Compensation systems in the nation, which makes it unlikely that many workers in North Carolina will receive coverage if they contract coronavirus at work.
What Injuries and Diseases Are Covered Under North Carolina Workers' Compensation Law?
Not all workplace injuries are covered under NC Workers’ Compensation Law. Workers’ Compensation in North Carolina generally covers only
Employers and their insurance carriers carefully examine Workers’ Compensation claims to determine if any of these limitations provide a basis for denying the claim. To be covered by Workers’ Comp, an injury must “arise” from the employment. This means the injured employee must be going about the business of his or her employer at the time the injury was incurred. Whether an employee was on the job is frequently a contested issue in NC Workers Compensation cases. Further, only injuries that are caused by an “accident” are compensable under the NC Workers’ Comp system. This means there must be some identifiable cause of the injury outside of the normal work routine. Whether or not an on-the-job an injury was caused by an “accident” is a frequent issue in contested cases before the North Carolina Industrial Commission (NCIC), which decides Workers’ Comp claims.
Under North Carolina law, an “accident” is a particular occurrence which does not occur as the result of events or activities which occur at regular intervals as part of your job, which means that not all injuries occurring on the job are considered “accidental” for purposes of North Carolina Workers’ Compensation laws. While indeed unfair, and among the most restrictive in the nation, in North Carolina “accidents” are only covered if they occur when a work routine has been interrupted and unusual conditions are created which are likely to produce unexpected consequences. No matter how great the injury, if the injury occurred under normal work conditions and the employee was injured while performing his regular duties in the usual and customary manner, then no “accident” is deemed to have occurred. As a result of this narrow definition of accident, many injured workers are denied benefits each year on grounds that when they were hurt, they were just doing their usual jobs in the ordinary way.
In contrast with injuries by “accident,” occupational diseases may be compensable under the North Carolina Workers’ Compensation system if: 1) the employee was at an increased risk of contracting the disease compared to the general public, and 2) hazardous working conditions contributed to the disease. A Workers’ Comp “accident” must arise from a particular identifiable event which can be fixed by time and place, unlike an “occupational disease” which develops gradually over a period of time. Occupational diseases include only those “causes or conditions which are characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside employment.” To be covered as an “occupational disease” an injured worker must show that their employment substantially contributed to or caused their condition, but if the condition is not one of a small designated group of diseases (including Black Lung disease), the employee must be able to also prove the they were placed at greater risk by their employment of developing the condition than the risk faced by the general public. North Carolina courts have interpreted this as requiring an employee prove two things: increased risk and causation. However, meeting both of these requirements will be difficult in a widespread epidemic situation.
Am I covered by Worker's Compensation Law if I contract coronavirus?
For coronavirus to be covered by Worker's Compensation, a claimant must first establish that an employer-employee relationship existed at the time of the injury. The distinction between being an “employee” and an “independent contractor” is rather significant as the North Carolina Industrial Commission does not have jurisdiction if a worker is considered an independent contractor. However, just because your employer calls you an independent contractor and pays you as such does not mean that the Department of Labor will agree; increasingly, employers are required to pay and insure their workers as employees regardless of an employers’ designation.
Workers who are considered “employees” within the scope of the act must then establish that contracting coronavirus was work-related. In other words, there must be evidence to prove that you contracted the disease in the course of performing duties that are part of or incidental to your employment. Unless you are a lab tech and a disease sample exploded onto you, or a hospital worker stuck by an infected needle, it is unlikely that an employee could show that their illness was caused by an identifiable “accident.” You may however, be covered if you can show that you are suffering from an occupational disease. Since COVID-19 is not one of the 27 diseases which are statutorily recognized in North Carolina as “occupational diseases,” you would have to prove two things: 1) that your occupation exposed you to an increased risk of contracting coronavirus compared to members of the general public, and 2) that your exposure at work significantly contributed to, or was a significant causal factor, in the development of the disease.
Based on these provisions, it seems unlikely that many workers outside of healthcare settings will be covered by NC Workers’ Compensation Law if they contract coronavirus from a workplace exposure, except in extraordinary circumstances.
How do you show an increased risk of exposure to coronavirus (COVID-19)?
For an occupational disease to meet the legal requirements in North Carolina, the employee must show they had an increased risk of developing the disease as a result of their job. The employee does not have to show that their job-related exposure is the only way they could possibly have developed the disease, but they must be able to show that their job duties were such that they are at a greater risk of developing the disease than the general public. People who work in a job where they are routinely exposed to individuals infected with COVID-19 may be more likely to be able to show that they meet this requirement, such as ER workers, doctors, nurses, hospital employees, EMS workers and others who are routinely exposed to infected people as a part of their daily jobs.
What about non-healthcare workers?
Although you may meet people and be exposed to co-workers in the course of your employment, it seems unlikely that you would be able to show that your job placed you at a substantially greater risk than the risk faced by the general public. If an employee gets infected by a disease that just happens to come from a co-worker, that is not covered by Workers’ Compensation. Other jobs may ultimately be determined to be in more of a grey area—flight attendants, bus drivers, taxi drivers, hairstylists, daycare providers, or others who are exposed to large numbers of people at close quarters. Nevertheless, it seems unlikely that many workers will be able to show an increased risk compared to the general public of contracting coronavirus from their employment.
How can the employee show that they got a coronavirus (COVID-19) infection from a workplace exposure?
The second thing the employee would need to show is causation. Essentially, the employee must show that the work actually caused them to contract the coronavirus. However, the more prevalent and widespread the virus becomes, the harder it will be to show causation. As more and more people are infected, it will become harder to show that the workplace was the location of the infection vs. getting exposed in the community or from a family member. Again, like increased risk, the more closely the employee works with infected individuals as part of their regular job duties, the easier it may be to show the infection originated at work.
In the early stages of the outbreak, and with lower numbers, it may be easier to track infected individuals and their contacts and show that, more likely than not, the worker caught coronavirus from a particular individual or workplace interaction. On the other hand, in the event of a widespread epidemic, it would be extremely difficult to pin down any particular infection to a work-specific cause.
How do I file a claim?
If you become ill, it is your responsibility to:
For more detailed information about filing a Workers' Compensation claim in North Carolina, click here.
Contact the Taibi Law Group to Discuss Your Work-Related Injury
If there is a large, nationwide outbreak, most employees in North Carolina will not be entitled to Workers’ Compensation benefits for COVID-19 even if they can show that they were infected at work. The exception may be front-line workers in healthcare and others who directly deal with infected individuals as part of their job. However, the more severe the outbreak, the harder it will be for anyone to meet the legal requirements for Workers’ Comp coverage under North Carolina law.
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