In the wake of COVID-19, no one is safe, and employees working in critical industries are certainly no exception. In fact, those working in dental offices, pharmacies, hospitals, and doctors’ offices are more susceptible to contracting COVID-19 at work than those in other industries. This begs the question of whether employees are entitled to workers’ compensation if they contract COVID-19 while on the job. The answer is, unfortunately, unclear. What is clear is that those who have a greater exposure to COVID-19 at work are more likely to qualify for workers’ compensation benefits than those who have the same likelihood of contracting the virus as the general public.

In order to be eligible for workers’ compensation, an employee must contract a disease or be injured on the job while acting in the scope of his or her employment. In North Carolina, if an employee contracts certain medical conditions while at work, they may be covered by workers’ compensation as an occupational disease. There is an enumerated list of medical conditions in North Carolina General Statute § 97-53 that qualify as covered medical conditions. If the medical condition is listed in the statute, then the employee is only required to show that their employment caused or substantially contributed to their condition. However, even if the condition is not listed in the statute, an employee may still be covered. North Carolina General Statute § 97-53(13) is a “catch-all” provision which scopes in any disease that is characteristic of and peculiar to a particular trade or occupation, excluding ordinary diseases to which the general public is equally exposed, as a covered medical condition. Employees attempting to qualify under the catch-all occupational disease provision must show that their employment placed them at a greater risk for developing the condition than the general public, and that the employment caused or substantially contributed to the condition.

The challenge that comes along with obtaining workers’ compensation for an occupational disease is proving causation. COVID-19 is not on the list of medical conditions that qualify as an occupational disease in the NC statute. Accordingly, employees seeking to get workers’ compensation for COVID-19 have a higher burden when it comes to proving causation since employees would have to prove that they were at a greater risk of contracting COVID-19 than the general public. In order to prove this, it is almost always required that there be medical evidence, such as a diagnosis from a doctor or a statement from the doctor attesting to your medical condition. Unfortunately, COVID-19 does not discriminate when it comes to who it affects; it can affect those who are employed and those who are not, making it tough to show that you, as an employee, are at a greater risk. As a result, it will be difficult to qualify for workers’ compensation even if you contract COVID-19 at work. However, healthcare workers, for example, will have a better shot at obtaining workers’ compensation than an employee who is not constantly coming into contact with people who have the virus, resulting in an increased risk of contracting COVID-19 when compared to the general public. Conversely, simply working with someone who was diagnosed with COVID-19, even if you worked in close proximity with that person, would not be sufficient evidence of an increased risk.

Perhaps an even greater hurdle than proving that your occupation puts you at a greater risk is proving that you contracted the illness at work. This is because symptoms of COVID-19 typically appear 2-14 days after exposure, making it extremely hard to pinpoint when and where the illness was contracted. North Carolina law has made clear that medical evidence that only offers a temporal relationship between a work-related exposure and the development of the disease is insufficient. Hence, it would likely not be enough for an employee to show that they went to work and started exhibiting symptoms a few days later, even if the employee came in contact with someone who had COVID-19 while at work. Due to the widespread nature of COVID-19, it would seem possible that the employee was exposed to the virus outside of the workplace. Instead, as an example, employees may need to show the following: (1) that they went to work and then went straight home each day leading up to them contracting the virus, (2) that they went nowhere else during that period of time and came into contact with no people outside of work, (3) that no one in their household went anywhere, including another place of work, during that time period, and (4) that no one in their household had COVID-19 prior to the employee’s infection. Only then could the employee rule out where COVID-19 was not contracted, leaving their workplace as the likely place of contraction. As you can imagine, it would be challenging to establish that COVID-19 was contracted at the workplace.

Workers’ compensation insurers in at least two states, Washington and Kentucky, have already stated that they will guarantee workers’ compensation benefits for healthcare workers and first responders. However, there are still insurer carriers insisting that they will decide whether COVID-19 is compensable on a case-by-case basis. These insurers have stated that the more widespread COVID-19 becomes, the more difficult it may be for employees to show that it is a work-related injury rather than a disease to which the general public is exposed. North Carolina employees will have to wait to see if states mandate insurers to cover COVID-19 or if they will be forced to rely on the North Carolina general statute already in place.

Filing a Workers Compensation Claim for COVID-19

If you contract COVID-19 while at work, you should immediately (1) notify your employer of your illness, and (2) file a Form 18 with the North Carolina Industrial Commission which can be found here. In addition to filing a claim, an employee should also give written notice of the claim to his or her employer and send them a copy of the completed form as soon as possible, as this is required by law.

If you file the workers’ compensation claim and are approved, your employer or its workers’ compensation insurance company must pay for medical treatment related to the illness, help you get back to work, or relieve pain. Additionally, the employer will pay you for your time-loss benefits.

Protected from Retaliation for Filing a Workers’ Compensation Claim

Some employees are hesitant to file a workers’ compensation claim because they have heard horror stories about workers getting fired after filing for workers’ compensation, and they are worried that by filing a claim, they too could jeopardize their job. Fortunately, however, employees are protected from being retaliated against for filing a workers’ compensation claim as a result of the Retaliatory Employment Discrimination Act (REDA). As a result of this act, it is illegal for an employer to terminate an employee for filing a workers’ compensation claim.

If your employer does terminate you as a result of you filing a claim, you should file a REDA complaint. Time is of the essence in cases like this as you only have 180 days from the date that the retaliatory action took place to file your complaint with the North Carolina Department of Labor. If you feel that your rights have been violated and would like assistance with filing a REDA claim, reach out to us. Having a legal team behind you in the event that your employer does take retaliatory action can make a great difference.

Interested in learning more about your rights as a worker during the COVID-19? Check out our COVID-19 Employment Law Employee Resources page.

COVID-19 Employment Law Resources For Employees

 

Lana Tigri

Lana was led to plaintiff-side representation through her passion for advocacy. Prior to law school, Lana volunteered as a Guardian ad Litem Child Advocate, working to ensure the safety of abused and neglected children, which inspired her dedication to serving others and fighting for justice. She continued to pursue this calling throughout law school, including serving as a MLK Fellow at the Legal Aid of North Carolina, where she worked on consumer protection, housing, domestic violence, and fraud cases, and litigated under the NC Student Practice Rule. Upon earning her J.D. from Georgetown University Law center, she received honors for her commitment to pro-bono service.