Communicable Diseases and Workers’ Compensation: Critical Factors for Determining Compensability, Part 3 of 3
This is the third and final 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.
Now that we have an idea of how COVID-19 workers’ compensation claims are handled in North Carolina, let’s look at some of the steps that an employer can take to reduce their risk of an employee contracting COVID-19 while on the job.
Ways of Limiting Workers’ Compensation Risk for COVID-19
On an almost weekly basis, new research is published on the long-term health outcomes for COVID-19 survivors. An increasing body of research suggests that more serious long-term complications can include inflammation of the heart muscle (cardiovascular disease), lung function abnormalities (respiratory disease), acute kidney injury (renal disease), sensory problems and concentration/memory difficulties (neurological disease), and even psychiatric complications. While the pandemic data is starting to show some encouraging trends (at least, domestically) in terms of infection and death rates, the need for realistic exposure mitigation strategies should remain a priority for employers.
OSHA initially developed guidance for organizing worker exposure risk into various levels of risk and has provided specific guidance for each level in their “Guidance on Preparing Workplaces for COVID-19,” which is available on their website. (OSHA No. 3990-03, 2020). Additionally, the CDC’s National Institute for Occupational Safety and Health (NIOSH) provides guidance in the form of factsheets directed toward specific industries such as airports, banks, construction, critical infrastructure, manufacturing, meat and poultry processing, and transit workers. This information is available on the CDC’s website. These are good starting points for businesses looking to limit the risk of COVID-19 exposure and potential workers’ compensation claims.
Some general guidance from OSHA for employers seeking to reduce the risk of COVID-19 exposure includes:
- Promptly investigate any COVID-19 claim and take immediate steps to protect the infected employee and remainder of the workforce;
- Enhance ventilation by increasing air exchanges in rooms;
- Modify workstation layouts to ensure all employees remain six feet apart;
- Close common areas where employees are likely to congregate;
- Increase the frequency of cleaning frequently touched surfaces;
- Encourage sick employees to stay home;
- Send sick employees home immediately;
- Follow CDC-recommended guidance;
- For non-healthcare workers, the CDC recommends cloth face coverings in public and where social distancing measures are difficult to maintain;
- The EEOC indicated that employers could require employees to wear PPE to reduce the transmission of COVID-19, though OSHA leaves the determination of whether to require masks to the employer based on its assessment of risk factors to employees, recommending PPE for anyone in the medium or greater risk groups; and
- Educate employees about how they can reduce the spread of COVID-19.
OSHA has continued to update their recommendations for mitigating the risk of workplace exposure. To the extent practicable, employers are encouraged to:
- Develop an infectious disease preparedness plan;
- Implement basic infection prevention measures, detailed above; and
- Develop policies and procedures for prompt identification and isolation of sick employees, if appropriate;
As we continue learning more about this disease, and as more claims work their way through the state systems, we should be able to better assess the relevant workers’ compensation risks. In the meantime, the compensability analysis for COVID-19 in many states, including North Carolina, will continue to be fact-specific and will vary depending upon what is going on in the state in terms of rate of infection, the type of work being performed, comorbid health conditions of the particular infected employee, and the impact of vaccinations.
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” .