Communicable Diseases and Workers’ Compensation: Critical Factors for Determining Compensability, Part 1 of 3
This is the first article in a three-part series discussing different aspects of compensability of COVID-19 workers’ compensation claims in North Carolina, including:
- Part 1: Are all communicable diseases the same? Does the designation of an epidemic or pandemic change the way statutes are interpreted?;
- Part 2: What are the critical factors for determining compensability of communicable diseases?; and
- Part 3: Ways of limiting workers’ compensation risk for COVID-19.
As 2020 unfolded and the COVID-19 pandemic set in across the world, it altered our way of life. In addition to closing schools and borders, the U.S. economy essentially shut down. Some businesses and industries were better equipped than others to handle the economic and public health fallout, and directed employees to work from home indefinitely. However, millions of workers, who provide services critical to the functioning of society, did not have the option to work from home.
According to the National Conference of State Legislators, these workers, who have been labeled “frontline” or “essential,” were in industries such as food and agriculture, health care, emergency services, transportation and delivery, energy, water and wastewater management, and critical manufacturing. These workers were, and still are, reporting to work every day.
COVID-19 has proved to be something of a moving target with the lockdown measures, new variants, and impact of vaccinations. The question of whether workers’ compensation covers communicable diseases, such as COVID-19, looms large. For carriers, employers, and workers’ compensation practitioners, the pandemic also begs other questions, such as: Are all communicable diseases the same? What are the critical factors for determining compensability of communicable diseases? Does the designation of an epidemic or pandemic change the way statutes are interpreted? Is there a way to reduce risk from these relatively common yet silent threats?
Are all communicable diseases the same?
Yes and no.
Communicable diseases are also known as infectious or transmissible diseases. The Wisconsin Department of Health reports that communicable diseases result from the infection and growth of pathogenic (disease causing) biologic agents in a human or other animal host. These types of diseases include Hepatitis A, B, and C, HIV, measles, salmonella, and COVID-19. Some communicable diseases have been found to be compensable, such as serum hepatitis in a lab worker. Booker v. Duke.
According to the Centers for Disease Control and Prevention (CDC), communicable diseases are spread through direct contact with a sick person, breathing in airborne viruses and bacteria, contact with blood and bodily fluids, contact with a contaminated surface, or insect or animal bites. All communicable diseases are not the same, and COVID-19 is a particularly insidious disease with specific peculiarities that we are just beginning to understand. The easy transmission and resulting widespread nature of COVID-19 creates increased chances of contracting the disease in public when compared to other communicable diseases.
Person-to-person spread is most likely to occur during close contact with infected persons and is mainly effectuated via droplets of respiratory secretions produced when an infected person cough or sneezes. It is also widely believed that COVID-19 can be transmitted by infected people who are asymptomatic. According to the Occupational Safety and Health Administration (OSHA), jobs that require sustained or frequent close contact with co-workers, customers, and/or members of the public who may be infected places them at an increased risk of contracting the disease.
By that standard, certain essential workers may be at an increased risk of contracting COVID-19 by virtue of their employment. However, OSHA’s guidance on control and prevention of COVID-19 also states that most types of workers have a similar risk of contracting COVID-19 as the general public. In fact, a recent study suggests healthcare professionals actually have a greater risk of contracting the virus outside of the workplace, rather than at work. This may be due to the strict prevention controls present in the healthcare setting.
The problem of tracing the source of a COVID-19 infection is an important emerging issue in the workers’ compensation arena, especially considering the evolving medical guidance regarding prevention, the various vaccines available, and the effect on community spread. All of these issues have a direct bearing on whether a particular COVID-19 infection is compensable.
Does the designation of an epidemic or pandemic change the way statutes are interpreted?
There have been questions around whether the designation of COVID-19 as a worldwide pandemic puts it in a completely different category than how communicable diseases are typically defined within legal statutes.
The short answer is no.
There is no cannon of state statutory construction or interpretation that kicks in once a pandemic is declared. While we have seen in several states, the designation of a pandemic has had an impact on the back end by prompting some state legislatures to introduce bills modifying laws or issuing special directives making it easier for frontline or essential workers to have their COVID-19 claim covered under the workers’ compensation system.
Within North Carolina, a legislative push to streamline COVID-19 workers’ compensation claims for specific categories of essential workers did not cross the goal line. Last year, House Bills 1056 and 1057 proposed adding a presumption of workplace exposure and compensability for COVID-19 (and other pandemic) infections in a number of specific industries such as police, healthcare, fire, and anyone designated essential. However these bills appear to have stalled in Committee. As denied COVID-19 workers’ compensation claims in North Carolina reach the Industrial Commission, it will be essential to monitor the opinions and tailor your business operations and legal practice with respect to COVID-19 accordingly.
 Risk Factors Associated With SARS-CoV-2 Seropositivity Among US Health Care Personnel | Infectious Diseases | JAMA Network Open | JAMA Network
If you have questions or wish to discuss this further, reach out to our Teague Campbell workers’ compensation team.
This article, in its original format, was written by Teague Campbell attorneys Heather Baker and Luke West and appeared in the 2020 Larson Series, “Workers’ Compensation Emerging Issues Analysis: COVID-19 in the Workplace” .