Given the current laws in action, when is coronavirus covered by workers’ compensation?
It would be a difficult and rare occurrence for private-sector employees diagnosed with COVID-19 to be covered by workers’ compensation laws. In North Carolina, as with many states, an injured worker has to show that the disease is a characteristic of and peculiar to a particular trade or occupation, and not an ordinary disease of life that the public is equally exposed to. That requirement alone seems to eliminate mostly everyone since we are in fact facing a worldwide pandemic of COVID-19. Even if an employee could show an increased risk that was specific to their trade, they would still need to prove that the employment actually caused the disease. One job sector, health care workers, may have the best chance of recovering because they are at a higher risk as a result of their jobs. But they may still have a difficult time proving that the exposure came from their job and not some unrelated activity outside of work. For most individuals that contract COVID-19, a workers' compensation claim will not be worth pursuing due to the short duration of the illness. But, given the seriousness of the disease in a small number of cases (including death), we expect to see litigation on this topic in the near future. There is a possibility that the North Carolina legislature could classify COVID-19 as a compensable event under NCGS 97-53 Occupational Disease Classification for health care workers, but that seems unlikely given the diffuse nature of the disease.
Federal employees may have better luck finding coverage under federal employee compensation rules for COVID-19 illness. The United States Department of Labor recently announced that a federal employee who contracts the coronavirus while in the performance of their job duties would have full coverage under the FECA for medical bills, lost wages and disability. The statement made it clear that exposure is not covered, but that a federal employee with a medical report from a qualified physician indicating a positive test result for COVID-19 based on an established work-related exposure, would qualify for federal workers’ compensation benefits.
What should employers be doing to avoid potential claims:
There are several excellent resources for employers, including the CDC and OSHA. Employers should also strictly enforce requirements that employees stay at home while sick and should send sick employees home immediately. By now, most employers have suspended business travel that is not absolutely necessary. Employers should also be looking for ways to avoid visits to customers’ homes and to limit customer contact with employees. When customers enter the workspace, employers should consider screening the visitors for COVID-19 exposure and sickness as well as Level 2 or 3 international travel. Employers should consider having non-essential employees work from home and should be flexible with leave for childcare with schools closed.
What can employees do to prevent potential claims:
Of course, the social distancing and hygiene guidelines should be followed. Employees should stay home if they are sick with flu-like symptoms or living with someone with these symptoms. If co-workers are sick or there is a shortage of protective equipment or cleaning supplies, the worker should report these things to supervisors immediately. Employees might suggest a remote work plan to their supervisor or suggest condensing the workweek to four, ten-hour days to lessen time in the workplace.
What other liabilities exist because of COVID-19?
I see four primary categories of liability arising from the novel coronavirus.
First, employment-related claims resulting from violations of federally mandated employee protections, such as The Family Medical Leave Act, The Americans with Disabilities Act, and the Fair Labor Standards Act. Employers also face possible claims for failure to protect employee privacy in the event an employee is diagnosed with COVID-19.
Second, claims that allege a failure to take reasonable precautions to protect customers are looming against businesses such as restaurants, daycare and nursing care facilities, airlines, or any other high-density business dealing directly with customers. Some lawsuits have already been filed against cruise lines by passengers who were exposed to COVID-19.
Third: Business litigation will be unprecedented as the disruption in the supply chain from China made it impossible for most manufacturing businesses to meet contracts. Quarantine and business closures impacted demand and caused contract breach allegations to arise on the buyer side as well. It is hotly debated whether force majeure clauses in contracts include pandemic outbreaks in their intended meaning.
Fourth: Insurance litigation will abound with countless businesses trying to utilize business interruption insurance to regain losses from forced closures and interruption in the supply chain.
What initial impact has Covid-19 had on your legal practice so far?
At Lanier Law Group, we have seen many impacts from COVID-19. Quarantine and shelter in place/at home orders mean that fewer people are driving and going to work. This naturally means that there are fewer automobile accidents and work-related injuries. Interestingly, we have seen an increase in inquiries about medical malpractice, wrongful death, and sex abuse claims. Social Security Disability claims are also expected to rise sharply in the aftermath of COVID-19 because of the devastating damage the virus causes in survivor’s lungs.
We have always employed the latest technology and tried to approach our practice in a forward-thinking manner. So, when COVID-10 struck we were ready with technology in place to transition to video conferencing and digital document signing. We are able to move our client’s cases forward by transitioning mediations, depositions, and hearings to video conference. Client’s settlement paperwork is all handled with DocuSign and funds are wired in lieu of using a paper check. These measures keep our employees and clients safe from this terrible virus.
Lisa Lanier
Attorney
I am Lisa Lanier. I have been working in personal injury law since 1992. I worked for a large firm for five years before founding Lanier Law Group, P.A. We are a statewide practice serving all of North Carolina in many areas of injury-related law, including serious automobile accidents, products liability, workers’ compensation, medical malpractice, and sex-abuse litigation. I host two weekly radio broadcasts on Two Guys Named Chris on Rock 92 and Jared & Katie on 107.5 KZL. We are developing a podcast offshoot of our nationally syndicated Lawyer Up with Lisa on The Two Guys Named Chris Show.
