By La-Deidre Matthews, Parker Poe Adams & Bernstein, LLP
On March 11, 2020, the World Health Organization (WHO) declared the novel coronavirus (COVID-19) a global pandemic. More than a year later, many Americans are resuming their normal lives as vaccinations become more readily available and prevention guidelines become more relaxed. However, COVID-19 still poses a risk, especially amongst individuals with jobs that require them to be in close contact with someone who is infected with the virus. Is contracting the disease while on the job a compensable action under North Carolina’s workers’ compensation laws? Like with most legal inquiries, it depends. Pursuant to the North Carolina Workers’ Compensation Act, an employee must show that they contracted COVID-19 due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, rather than an ordinary disease of life to which the public is equally exposed. While no case law currently exists that addresses whether COVID-19 meets the requirements of a compensable disease under the NC Workers’ Compensation Act (the Act), a review of the pertinent statutes may shed light on the inquiry.
In North Carolina, workers compensation claims are divided into two categories: injuries that occurred by an accident or specific traumatic event, and those caused by an occupational disease. N.C.G.S. § 97-53 enumerates a list of compensable occupational diseases covered under the Act. COVID-19 is not one of the identified diseases. Several states have enacted legislation and/or issued executive orders that expand workers’ compensation for certain workers who contract COVID-19; however, North Carolina is not among them. In May 2020, House Bill 1056 proposed an amendment that would provide coverage for first responders and healthcare workers who contract COVID-19, but the proposed legislation ultimately failed.
Diseases such as COVID-19 not specifically included under N.C.G.S. § 97-53 may still be compensable under a “catchall” provision of the Act if it is proven to be contracted due to “causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment” and is not an “ordinary disease of life to which the general public is equally exposed outside of the employment.” These first two elements of the analysis are satisfied where an employee can show that her employment exposed her to a greater risk of contracting the disease than the public generally. Further, proof of a causal connection between the disease and the employment must exist. The third element may be proven by circumstantial evidence and is satisfied if the employment significantly contributed to, or was a causal factor in, the disease’s development. Relevant considerations include the extent of exposure to the disease during employment, the extent of exposure outside employment, and the absence of the disease prior to the work-related exposure as shown by the employee’s medical history.
In totality, the factors tend to indicate that an employee who contracts COVID-19 simply by being in close proximity to an infected co-worker would probably not be entitled to workers’ compensation benefits absent proof that the nature of her occupation presented unique circumstances, making her more susceptible to contracting the virus while on the job than the general public. COVID-19 has proven to be a contagious and fast-spreading virus, which makes proving these factors even more difficult. To date, there have been almost 33 million reported cases of the disease in the United States. However, there are certain occupations that would arguably have a higher probability of exposure than the general public. The Occupational Safety and Health Administration (“OSHA”) has identified several occupations as high exposure risk occupations, including healthcare employees, such as healthcare delivery and support staff and laboratory personnel; morgue workers; and mortuary workers.
Whether a disease is occupational is a fact specific-analysis and simply being exposed to COVID-19 is not enough to meet the burden of proof under state law. Although the number of confirmed cases in the U.S. is gradually decreasing, the virus continues to upend the lives of many Americans. Employers must remain vigilant and prepare for issues that arise as employees transition back into the workplace. Keeping employees up-to-date on information provided by the WHO, Centers for Disease Control and Prevention, and the North Carolina Department of Health and Human Services as well as encouraging good hygiene practices are a few ways employers can mitigate the impact of COVID-19 in their respective places of work. During the breakout session at the 44th Annual Meeting and Spring Program, the Employment Practice Group looks forward to providing more guidance and discussion surrounding issues employers will face as they welcome employees back into the workplace.
N.C.G.S. §§ 97-1 et al.
An Act Amending the Workers’ Compensation Law to Provide Occupational Disease Coverage for First Responders and Health Care Workers who Contract Coronavirus, H.B. 1056, 2019-2020 Session (N.C.).
N.C.G.S. § 97-53(13).
Jones v. Steve Jones Auto Grp., 200 N.C. App. 458, 463, 684 S.E.2d 497, 500 (2009) (citing Rutledge v. Tultex Corp., 308 N.C. 85, 93, 301 S.E.2d 359, 365 (1983)).
Carroll v. Town of Ayden, 160 N.C. App. 637, 642, 586 S.E.2d 822, 826 (2003) (citing Rutledge v. Tultex Corp., 308 N.C. 85, 93, 301 S.E.2d 359, 365 (1983)).
CDC, Trends in Number of COVID-19 Cases and Deaths in the US Reported to CDC, by State/Territory, https://covid.cdc.gov/covid-data-tracker/#trends_dailytrendscases (last accessed May 25, 2021).
OSHA, Guidance on Preparing Workplaces for COVID-19, https://www.osha.gov/sites/default/files/publications/OSHA3990.pdf.