Is Coronavirus Covered Under Workers Compensation?
As it becomes increasingly likely that a major epidemic of coronavirus (COVID-19) will sweep the country, people are beginning to wonder, “If I get coronavirus and I was exposed to it and caught it at work, is it covered?” The answer, like many areas of the law, isn’t black and white.
How do the North Carolina workers’ compensation laws provide protection during an epidemic – like coronavirus?
As a general rule, coronavirus will be covered, if at all, as an occupational disease. North Carolina law requires that for an occupational disease such as this to be covered, it must be “due to 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.” North Carolina courts have interpreted this as requiring an employee to prove two things: increased risk and causation. Meeting both of these requirements can be difficult. The more widespread the virus becomes, the more difficult it will be to prove causation. Here are a few scenarios to help explain the answer.
How do you show an increased risk of exposure to coronavirus (COVID-19)?
For an occupational disease to meet the statutory requirements, the first thing the employee must show is an increased risk of developing the disease. The employee does not have to show that their job exposure is the only way to develop the disease; only that their job duties are such that they are at a greater risk of developing it than the general public. For some jobs, that is obvious and easy to prove. People who work in a job where they are routinely exposed to infected people are likely to meet the requirements. Who would that be? Think first responders – ER workers, doctors, nurses, hospital employees, EMS workers and others who would be routinely exposed to infected people as a part of their daily jobs.
What about other workers? Here are a few scenarios to help explain the answer.
As an attorney, it is unlikely I have a greater risk of being exposed than anyone else unless I specialized in coronavirus cases. Though as an attorney, I meet with people and am exposed to co-workers in an office environment, I generally don’t do that anymore or less than other typical office workers. The courts have been clear with their decisions on this point. If an employee gets infected by a disease that just happens to come from a co-worker, that is not covered. Others might be in more of a grey area. Think flight attendants, nursing home caregivers, bus drivers, taxi drivers, hairstylists, daycare providers, or others who are exposed to large numbers of people at close quarters. But as a general rule, the majority of workers will not be able to show an increased risk.
How can the employee show the exposure caused by the coronavirus (COVID-19) infection?
The second thing the employee needs to show is causation, i.e. that the work actually caused the employee to get the coronavirus. Paradoxically, the more prevalent and widespread the virus becomes, the harder it will be to show causation. Why? If millions of people get the virus, it will become harder to show that the workplace was the location of the infection vs. getting exposed in your community or from a family member. Again, like increased risk, the more closely the employee works with infected individuals as part of their job duties, the easier it will be to show the infection originated at work. Also, in the early stages of the outbreak, and with lower numbers, it is easier to track infected individuals and their contacts and thus makes it easier to show that more likely than not, the workers caught coronavirus from a particular individual or workplace interaction. If the worst-case scenarios unfold and there are literally tens of millions of people infected, then it is hard to pin down a work-related cause to any particular infection.
The bottom line is, if there is a large, nationwide outbreak, most employees will not get workers compensation for coronavirus even if they can show they got it at work. The exception to front-line workers in healthcare and others who directly deal with infected individuals as part of their job. The more severe the outbreak, the harder it will be for anyone to meet the legal requirements under North Carolina law.
Hopefully, by limiting exposure to large crowds, diligently washing hands, avoiding contact with those who may have been exposed – this epidemic will not be as bad as it could be.