March 16, 2020 | By W. Scott Fuller
There is no longer any question about whether the coronavirus (COVID-19) pandemic will affect North Carolina employers and employees. It will … and probably in ways that cannot be fully predicted. Its invasion has begun, and all North Carolinians must transition from preparing for the contagion, to actively fighting it, and then, to recovering from it. Somewhere along the way, it seems likely that an employee will contract COVID-19. And, somewhere along the way, it seems equally likely that an employee (or that employee’s dependents) will file a workers’ compensation claim against an employer, based upon exposure to COVID-19. Are COVID-19 claims compensable under North Carolina law?
Although legislators and judges have expanded the scope of its coverage over the last 90 years, The North Carolina Workers’ Compensation Act (Act) is not a general health insurance plan. At its core, “the grand compromise” is intended to cover occupational risks, and to ameliorate occupational damages. A pandemic, by its very nature, involves a contagion that indiscriminately affects all types of people – whether employed or not. And, as to those victims who may be gainfully employed, COVID-19 is not expected to be linked to any particular type of business, or to any particular set of working conditions, or for that matter, to any particular kind of laborer.
Because North Carolina is not a “positional risk” jurisdiction, an employee who contracts COVID-19 probably does not suffer from a condition for which the employee’s employer is responsible under the terms of The North Carolina Workers’ Compensation Act. The conclusion that a COVID-19 claim does not fall within the coverage of the Act is based upon the fact that an employee asserting a claim for COVID-19 must establish that it is an “injury by accident” and/or that it is an “occupational disease.” Based upon what we currently understand about COVID-19, it seems unlikely that an employee can make out a viable claim under either legal theory.
Fact patterns come in all forms, but it is hard to imagine a fact pattern where exposure to COVID-19 meets the “injury by accident” criteria. The existence of an injury exists does not establish the existence of “accidental” circumstances. In North Carolina, an “injury by accident” typically involves some kind of interruption in the employee’s normal work routine.
With a COVID-19 claim, the most common fact pattern will likely be where one employee unwittingly infects another, under typical working conditions, while performing typical work tasks, in the typical way. Even if the moment of transmission can be identified – which also seems like an unlikely circumstance — the transmission of COVID-19 will most likely occur merely because an infected worker is in close enough proximity to a co-worker to allow it to happen. However, in North Carolina, an employee cannot establish legally sufficient causation by showing only that the place of employment provided a fortuitous opportunity for harm to occur (“positional risk”).
Occupational Disease Theory:
It seems more likely that an employee might pursue a COVID-19 claim, contending that it is an occupational disease. The Act, however, does not cover all diseases … just occupational diseases. It is an employee’s burden to establish a legally sufficient causal link between the employment and the condition in question to make it an occupational disease. Our statute lists 28 diseases that are occupational diseases, if there is a simple causal connection between the employment and the disease. COVID-19 is not a listed occupational disease.
For any disease that is not specifically listed, North Carolina’s occupational disease statute provides coverage only if an employee can satisfy the criteria set out in its “catch-all” provision, N.C. Gen. Stat. §97-53(13). (13) specifically excludes from its coverage all ordinary diseases of life to which the general public is equally exposed. To fall within the penumbra of (13), an employee’s evidence on causation would have to show that there was something about the nature of the employee’s employment exposed the employee to an “increased risk” of developing COVID-19. Again, North Carolina is not a “positional risk” jurisdiction, so an employee’s evidence that the employee worked near someone who was diagnosed with COVID-19 is not legally sufficient evidence of “increased risk.”
While it may be the case that we come to learn that specific jobs have particular characteristics and distinguishable hazards that place an employee at an “increased risk” of developing COVID-19, in a pandemic situation, where a huge percentage of the general population is exposed, and actively transmitting COVID-19, it seems like it will be a rare job that puts an employee at “increased risk.” And, even if an employee pigeonholes the employee’s claim into (13), the employee still has to prove causation. Causation is typically established through circumstantial evidence. In a pandemic, regardless of the employee’s employment, it seems unlikely that an employee will be able to establish, through lay evidence, where COVID-19 was contracted, or that the employee will be able to rule out, through lay evidence, where COVID-19 was not contracted. As for medical evidence on causation, North Carolina law is clear that medical evidence is insufficient if it offers only a temporal relationship between a work-related exposure and the development of the disease.
Responding to COVID-19 claims:
In almost all cases, it is anticipated that an employer will have strong factual and legal bases for denying the compensability of a COVID-19 claim brought in North Carolina, and at most, that an employer might have altruistic or business reasons for deciding to handle a COVID-19 claim for North Carolina workers’ compensation benefits on a “pay without prejudice” basis.
Please call Tom Lesondak CLCS, RWCS to discuss the specifics of your Workers Compensation Policy at 919.779.5115