Communicable Diseases and Workers’ Compensation: Critical Factors for Determining Compensability, Part 2 of 3
This is the second 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.
In Part 1 of our series, we discussed the impacts of COVID-19 on the workforce, especially essential workers, whether workers’ compensation claims cover communicable diseases like COVID-19, and if the designation of an epidemic or pandemic change the way that workers’ compensation statutes are interpreted. In this article, we will discuss the critical factors that should be considered when determining compensability of communicable diseases.
What are the critical factors for determining compensability of communicable diseases?
In most states, workers’ compensation injuries fall into one of two categories:
(1) Accidental injuries that can be traced to a specific time, place, and work-related cause (an injury by accident); and
(2) Occupational diseases to which the worker was exposed because of their employment.
The very nature of communicable diseases such as COVID-19 makes it difficult to fit particularly well into either category. In a state-by-state survey of COVID-19 compensability compiled by the National Workers’ Compensation Defense Network (NWCDN), Mimi Metzger of Ritsema & Lyon, LLC, reported that a survey of Colorado case law revealed claimants would typically bring communicable disease claims under both injury by accident and occupational disease categories. However, in most jurisdictions, Colorado included, it appears a potential claimant would have a better chance of proving compensability by pursuing an occupational disease claim. In particular, because COVID-19 is spread from person to person, rather than from exposure to some fixed aspect of the workspace, such as the presence of asbestos, satisfying the requisite causation element may be a difficult proposition.
In North Carolina, the burden for proving the causation requirement for occupational disease claims falls under the so-called “increased risk” rule (also the majority rule), where the employee must prove the risk of contracting the disease was inherent in the employment and that the employment presented an increased risk of contraction when compared to the general public.
Under this category, occupational diseases are not generally compensable if the risk of contracting the illness is common to the general public. If the disease is not the result of a risk specific to the workplace, there is a chance it would not compensable. The problem for Workers’ Compensation Boards, the Industrial Commission, and practitioners is that communicable diseases, such as COVID-19, are spread in the community and something to which the general public is easily exposed. How does one prove when, where, or how they contracted a virus when there is community spread? How does one defend against these claims and seek to prove a negative: that the worker did not contract the virus at work?
In North Carolina, an increased risk state, a COVID-19 infection would generally not be considered compensable because you would arguably be just as likely to contract the disease out in public as you would be at your job. That said, occupational disease claims are extremely fact-specific, so an important factor to consider is whether the job in question regularly exposes the worker to COVID-19 positive persons, such as certain workers in the healthcare field.
The difficulty in proving exposure can pose an issue for essential workers and others who are regularly exposed to the general public in the course and scope of their employment, but who are also human beings outside of work who, despite social distancing, mask regulations and even vaccines, could just as easily be exposed to COVID-19 outside of work. OSHA has tacitly recognized this proposition in its COVID-19 guidance by acknowledging that jobs requiring close contact with others may place those workers at a higher risk of contracting COVID-19 and that occupations which do not require that level of close contact may place those workers at a risk level akin to the general public. The fundamentally altered landscape in the United States during intense lockdown measures seems to cut against a defense that a worker could have just as easily contracted the disease by being out in public. However, as states begin to re-open, the likelihood of establishing increased risk at work when compared to the general public seems to decline.
Things to consider when determining whether there will be enough of a causal connection between employment and the contraction of COVID-19:
(1) The employee is a healthcare worker or other frontline worker who regularly comes into contact with COVID-19 positive persons;
(2) Evidence the employee was in direct contact with a COVID-19 positive person at work;
(3) Reliable expert evidence that their employment placed them at a greater risk of contracting the disease when compared to the general public;
(4) A plausible source of contraction at the workplace and incubation period that fits within the infection timeline; and/or
(5) A lack of equally plausible infection sources outside of the workplace. This would also require the demonstration of additional factors, such as:
- How many people the employee was in close contact with on an average day for 14 days prior to diagnosis;
- Whether the employee was provided with safety precautions, such as PPE, at work;
- Whether the employee used PPE outside of work;
- Hand sanitizing/washing stations at work;
- Hand sanitizing/washing practices outside of work;
- The extent to which the employee was or was not engaging in social distancing; and,
- Other measures that were present both inside and outside the workplace to reduce the risk of contracting the disease.
At this time, there are still questions within North Carolina on how COVID-19 compensability claims will be addressed by the Industrial Commission and the appellate courts. It is critical for an employer to be aware the employee’s burden of proof in regards to increased risk and to take steps to mitigate that risk to the extent practicable.
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” .