Intro: 00:01 Human resources, employee relations, the legal department are aligned against you. Your employer has trained for this day, the day you’ve become an expendable number at work. There are robust laws that may protect you. But unlike the company, you’ve not been drilled on how to wield them. You’re playing catch-up. There are pitfalls to avoid and counter measures to deploy that may save your job or puts you in the best position to negotiate a favorable settlement. Minutes matter. Your words and actions matter even more. The Walking Papers podcast offers the first foray into learning how to turn the tables when you’ve been targeted at work. Knowledge is power. Let’s get started.
Robert Ingalls: 00:46 What happens if you contract coronavirus at work? Many employees working jobs deemed essential are understandably worried about contracting the coronavirus, and how that will affect not only their health but their finances and their families. Today, I am here with North Carolina employment lawyer, Josh van Kampen, to discuss these issues and more. Welcome back, Josh.
Josh Van Kampen: 01:09 Good to be here.
Robert Ingalls: 01:10 Right. Now, the title of this episode is Quid pro quo Clarice – Will workers’ compensation, insurance carriers or short-term and long-term disability insurers have your back if you contract COVID-19?
Josh Van Kampen: 01:24 So I don’t know what your favorite movie was in law school or an undergrad, but The Silence of the Lambs was one that I probably watched, I don’t know, maybe 20, 30 times. And so, does everybody remember the scene where Clarice is meeting Hannibal Lecter, and he says, “Clarice, come closer, Clarice. Clarice, I need to see your identification. Come closer.” And then later on in that scene, he talks about a quid pro quo where he’ll give her information if she shares some personal information about herself. Well, in the workplace, there are quid pro quos’ that have happened with respect to certain benefits that employees are supposed to have access to.
Josh Van Kampen: 02:13 And we’re going to be talking about basically two categories of those benefits that are applicable potentially in the COVID-19 pandemic. One is a workers’ compensation benefit. So in North Carolina and probably in virtually all states in the country, employers are required to carry what’s called workers’ compensation insurance. And so, if an employee is injured at work or suffers a workplace injury, they’re literally an insurance company. You’ve seen these Aflac commercials, which are for short-term, long-term disability. That’s the second category, but there are also insurance companies that provide coverage when employees are injured or contract a disease at work.
Josh Van Kampen: 02:58 So, that’s one category we’re going to be talking about, are workers’ compensation benefits. And then the second are essentially the Aflacs’ of the world, and I should probably get a royalty for calling them out as opposed to some of their competitors. But Aflac and other companies like it, they sell to employers or to individual employees disability policies, so that if for whatever reason you are unable to report to work, there are disability policies that you may be entitled to recover some of your lost wages from. And so that’s the second category of potential benefits that listeners may be able to take advantage of with COVID-19 under these short-term and long-term disability policies. But first step essentially is workers’ compensation benefits.
Robert Ingalls: 03:52 So most people are not intimately familiar with workers’ compensation laws, and how they work, and the ins and the outs. Can you give us a brief overview?
Josh Van Kampen: 04:01 Sure. So, a normal scenario where workers’ compensation benefits would come in, would be… I like to talk about supermarkets. So let’s say a cashier was injured while walking around the supermarket to show a customer where a particular product was. They fell and they broke their leg. They would have broke their leg at work in the course of performing their duties and would be entitled to what are called workers’ compensation benefits as a result of that injury. So what does that entail? First, any medical bills that are associated with a workplace injury are covered by a workers’ compensation carrier. So you don’t have to do it on your private insurance. Second, that cashier, maybe, she’s laid up for a month recovering from her broken leg, well obviously, she’s going to be suffering a loss of income during that recovery period.
Josh Van Kampen: 05:03 Well, under the workers’ compensation laws, the insurance carrier would be required to supplement, depends by a state, but in general, supplement two thirds of her lost pay while she’s recuperating from an injury. Those workers’ compensation laws also… God forbid. Let’s say that the injury ended up having some sort of permanent restriction on that employee’s leg. Let’s say that a doctor said that she was now restricted to 90% usage of her leg or it was 10% disabled, there are formulas, at least under the North Carolina workers’ compensation law that can ascribe a value to that work injury, separate it apart from her loss of income.
Josh Van Kampen: 05:48 And then the workers’ compensation laws are good too. Because let’s say she’s only able to come back on light duty or a restricted duty or fewer hours in the week, the workers’ compensation law requires employers to work with… In other words, ease that employee back into their position. So that’s nice. And then in North Carolina, there are really robust protections for people that file workers’ compensation claims. And so you’re not allowed to be retaliated against for doing that, for example. And if we prove that somebody was retaliated against for filing a workers’ compensation claim, then we can recover, literally, tripled damages on their lost pay benefits. So it’s got a nice whistleblower protection component to it.
Robert Ingalls: 06:34 So let’s say I have a workers’ compensation claim I want to make, how do I go about starting that process
Josh Van Kampen: 06:40 Well, in gen, there are a couple of different ways to do it. But the first way to do it, you start by notifying your employer that you suffered a workplace injury. And you want to do that as soon as possible, and certainly, within 30 days if you want to avoid having problems. That should prompt the employer, if they’re sophisticated, to give you what’s called a Form 18, which is basically like an injury report or incident report to document the injury. At that point, the employer is supposed to notify its workers’ compensation carrier that you’ve been injured at work, and then the insurance carrier does due diligence.
Josh Van Kampen: 07:24 And you get sent to a doctor, and they’re determining whether or not the injury that you’re claiming was work-related or not. Because workers’ compensation insurance covers work injuries not non-work injuries. You know how insurance companies are. Sometimes, they try to weasel out of protections. And so for our listeners, if you’re claiming a workers’ compensation injury, they’re going to try to tease you or tricky you into saying something about how it was a preexisting condition, maybe you hurt yourself playing basketball when you were in college, whatever.
Josh Van Kampen: 07:59 Don’t go there. Don’t be fooled. It only applies to workplace injuries. And then if there’s a denial, there’s, at least in North Carolina, an agency called the North Carolina Industrial Commission where you can appeal a denial of workers’ compensation benefits. And at that point, if you get a denial, you should hire a workers’ compensation attorney. And there are a bunch of good ones in Charlotte. I’m not a workers’ compensation lawyer, but if you call my office, we can certainly point you in the right direction.
Robert Ingalls: 08:31 So that takes us to the big question that I have. Can someone get workers’ compensation benefits for contracting COVID-19?
Josh Van Kampen: 08:41 Well, once again, we got a law that’s on the books that didn’t envision a pandemic. And so here, we’ll have listeners nationally, we’ll have listeners in North Carolina, understand, if you’re not in North Carolina and you’re listening to this, you have to take whatever I say with a huge grain of salt because each state has its own workers’ compensation law. And a lot of times, they’re pretty similar. But all I’m going to be speaking to essentially is the North Carolina workers’ compensation law. So the North Carolina Workers’ Compensation Act does not address whether or not someone contracting COVID-19 in the workplace, whether or not that is something that you can get workers’ compensation benefits from. So that’s unfortunate.
Josh Van Kampen: 09:24 And so we’re having to, once again, try to fit this foot into a slipper that doesn’t work very well, but let’s try. So there’s a two-part standard under the North Carolina’s Workers’ Compensation Act. One is, we have to show that the employment placed the individual, the listener, at a greater risk for developing the condition than the general public. So again, look at the job. Is the person in that job at a greater risk for developing COVID-19 than other people in the public? Obviously, if you’re a first responder or if you are somebody who works in a doctor’s office, in a hospital, in a medical environment, you are more likely to contract COVID-19 than me or Rob Ingalls, my good friend.
Josh Van Kampen: 10:15 So in that instance, at least with the first part of the test, I would feel pretty good about being able to say that first responders or healthcare workers are more likely or at greater risk of developing the condition. A little bit of a closer call, let’s talk about those cashiers, those Instacart delivery folks that are keeping us safe by delivering groceries or checking out your groceries with the cashiers. To me, they’re also more at risk than the general public. Think about the cashier. I mean, they are… People queue up to them over and over and over again are well within the six feet of separation we’re supposed to have. So I think I would certainly be confident in arguing to the industrial commission that those cashiers or, let’s say, the Instacart people who are doing the shopping for you are more likely to contract COVID-19.
Josh Van Kampen: 11:12 Now, let’s talk about paper pushers like you and me, Rob, are now who are able to work remotely, we certainly can’t say that we’re more likely to contract at COVID-19. And so I think you and I, for example, wouldn’t have a leg to stand on. But cashiers, first responders, healthcare workers, delivery drivers, folks like that I think would. Problem is that’s only the first part of the test. The second part of the test is to show that the employment caused or substantially contributed to the condition. So, in other words, we need to prove that your job… You contracted COVID-19 at work or as a result of your job. And how do you do that? Because with COVID-19, there’s an incubation period of, the estimate I think is, most recently, two days to 14 days.
Josh Van Kampen: 12:06 If that’s the case, how are you able to go to the industrial commission and pinpoint that you contracted COVID-19 in the performance of your job duties, because there’ll be an intervening period in between where you could have gotten it elsewhere. And so, there it becomes really important for our listeners to be able to say that you were following, let’s say, your lock-in-place order per your state. And so, if you weren’t going to work, you were back home, that you abided the six feet distance restriction that’s required. If you can show that your COVID-19 hygiene, if you will, was exemplary, and so that the only interactions that you were having with members of the public was at work, then I think you’re more likely to be able to show that connection, if you are able to show that you were not around people where you might’ve contracted it other than at work.
Josh Van Kampen: 13:07 Now, what makes me concerned for listeners though is, let’s say you minded your Ps and Qs, and you did everything right, and your only exposure to contract COVID-19 was at work at the supermarket, that’s only as good as the other people that you live with. So, if you’re interacting with your little brother who also had a job, and he went on spring break and was a knucklehead, you could have contracted it from your knucklehead little brother, then that’s going to create a problem for trying to apply for workers’ compensation benefits.
Robert Ingalls: 13:46 Yeah, I could see that getting really stressful if there was some litigation there. Just trying to prove who went where and where it came from, I could see that being very difficult.
Josh Van Kampen: 13:54 All right. And one thing we already know about workers’ compensation carriers, they’re being counters. And so if they can find some wiggle room to not have to pay benefits, then you know that they’re going to do that. Now fortunately, not in North Carolina, but it’s been reported that in other States, there have been some amendments to workers’ compensation laws to provide benefits for certain categories of folks. So, according to recent news reports, Washington and Kentucky have amended their workers’ compensation laws to allow for healthcare workers and first responders to be covered by those laws. Period.
Josh Van Kampen: 14:38 And I certainly would urge our listeners in North Carolina to contact the governor’s office, Governor Cooper, and also your senators and your representatives in the state house or general assembly to urge them to amend the workers’ compensation law to apply to healthcare workers and first responders at a minimum. Now, to me, I think we also want to cover our delivery drivers and our cashiers and supermarket workers. They’re really brave, and valuable, and also, they don’t get paid very well. And the notion that they’re going to be out there, left hanging, not eligible for workers’ compensation benefits, is just offensive to me. And so I think we all have to step up. You know Rob, just like you did on the last one, if we could leave a link for folks to follow to contact their state and local representatives, that’d be great.
Robert Ingalls: 15:36 Yeah, absolutely. Yeah. Their job seemed, at this moment, to be very high risk with lower reward?
Josh Van Kampen: 15:43 Yeah. And I started slipping… I just started slipping tips to the cashiers and the baggers. I know they are not supposed to accept it, but I thought just – they remind me of my own kids. A lot of them are 16, 17, 18, 19 years old. And then you got the single moms who are working three jobs, and one of which is being a cashier. They don’t have any choice but to go to work to support their families. So gosh, we got to protect them too.
Robert Ingalls: 16:14 Absolutely. So outside of worker’s compensation, are there any other options to help employees?
Josh Van Kampen: 16:21 Yeah, so there are… Remember, we talked about that second bucket which has to do with disability policies. So some employers, especially the larger employers, they pay to have, what are called, short-term disability policies for their workers. The more generous employers don’t require the employee to contribute to those premiums. Some other employers will require employees to contribute. And then, there are still other employers who won’t pay anything for these short-term disability policies, but some of the listeners may be given an opportunity to pay for that entirely out of their own pocket. But assuming that you’re covered by a short-term disability policy, there’s probably a pretty good chance that you would be eligible for a compensation under that policy if you contract COVID-19.
Josh Van Kampen: 17:16 And what’s nice about these short-term disability policies is most of them pay up to 80% of your pay rate, which is better than some of the federal laws that we were talking about in the last podcast. And they usually cover up to a 90 days at 80% pay, which I think should be sufficient for someone to be diagnosed and recover, get a clean bill of health from a COVID-19 diagnosis. But it’s critical for listeners to obtain copies of their disability policies. So the legal term for them, what you’re asking for, are Summary Plan Descriptions or SPD for short. You’re legally entitled to get a copy of your short-term disability plan, and it’s really in the fine print to determine whether or not you would be covered. But certainly, as a general rule, I would anticipate that folks would be covered for a COVID-19 diagnosis for a short-term disability.
Josh Van Kampen: 18:23 One other nice thing about short-term disability… Remember with workers’ compensation benefits, we were getting caught up on proving that the COVID-19 was contracted at work or work-related. Under short-term disability policies, it is irrelevant how you contracted COVID-19. Your knucklehead little brother, who went to spring break, who was covered by a short-term disability policy would still be entitled to benefits regardless, because there’s not going to be an inquiry about how COVID-19 was contracted.
Robert Ingalls: 18:57 Now, how does long-term disability policies… How do they play into this?
Josh Van Kampen: 19:02 So in general, long-term disability policies dovetail with short-term disability. So if short-term disability covers you for 90 days, usually long-term disability policies will pick up on the 91st day. Sometimes, you have gaps, and so, it may be it picks up on the 120th day versus the 90th day. But most employers that provide short-term disability also provide long-term disability policies. Now, long-term disability policies are not as generous. So as a general rule, they pay only about 60%, whereas short-term disability benefits generally pay out at 80%. That drops down to 60% on long-term disability. And then long-term disability policies are also much more likely to deny you coverage, because you’re having to prove that you are unable to work, and not only that, unable to work for a longer period of time.
Josh Van Kampen: 20:01 So, and I guess the question is, folks with COVID-19, are they likely to be the beneficiaries of long-term disability? And I think most likely not because, jeez, I sure hope that within a 90-day period that you’re fully recovered. But let’s say, God forbid, one of the listeners ended up with some severe damage to their lungs. And so, as a result of that damage, let’s say, they were a welder or something like that, and it wasn’t the COVID-19 but the scarring of the lungs as a result, that can be… I could see where long-term disability benefits might apply in that situation. Or let’s say that the person who contracted COVID-19 already had some chronic condition that was exacerbated by the COVID-19 diagnosis, in that instance, long-term disability benefits might apply.
Josh Van Kampen: 21:02 But in general, for listeners, it’s unlikely that you’ll benefit under a long-term disability policy for COVID-19. One other thought though, in terms of trying to become eligible for receiving long-term disability benefits, let’s say that originally you were diagnosed with COVID-19, you took short-term disability. But during that time you were also diagnosed with a general anxiety disorder, God forbid, you suffered a loss in your family and were battling a depression, it’s possible that those additional diagnoses after your COVID-19 diagnosis could result in you being eligible for long-term disability even though your COVID-19 condition resolved itself.
Robert Ingalls: 21:52 All right. Well, thanks for joining us today, Josh. This was very informative. And for the listener, I think it’s important to remember that we are stating the law as it is on April 1st, 2020. There’s a lot of updates taking place, and we’re going to come back here, and we’re going to keep you updated. But the laws are moving quickly, and some of this information could be stale by the time you hear it. So please never make any legal decisions without speaking to a legal professional first. Take care.
Outro: 22:19 Congratulations for taking an important initial step in turning the tables at work. But this podcast is just an educational resource. It does not constitute legal advice and is no substitute for consulting an employment attorney about your unique situation before making legal decisions. Visit our website for more online resources and videos at ncemploymentattorneys.com, or better yet, call (704) 247-3245 for a free initial intake interview so Van Kampen law can evaluate your case. Until next time, keep your head up and your wits about you.