COVID 19 In The Workplace Primer
Employee and Business Owner / Employer Considerations
FAQ: Could someone have a valid workers’ compensation claim related to COVID-19?
OCCUPATIONAL DISEASES UNDER THE NORTH CAROLINA WORKERS’ COMPENSATION ACT
North Carolina General Statute § 97-53 lists several conditions / diseases that are recognized under North Carolina law as occupational diseases. If a person has a disease / condition found in that list, then to receive benefits, the person must only prove that the disease / condition was caused by their employment or that their employment significantly contributed to their development of the condition. The most complicated occupational disease cases involve diseases not specifically listed in the statute.
COVID-19 AND OTHER “UNLISTED” OCCUPATIONAL DISEASES – ADDITIONAL EVIDENCE REQUIRED
COVID-19 and many other occupational diseases are not specifically listed in North Carolina General Statute § 97-53. For “unlisted” diseases like COVID-19, claimants must prove not only that their job cause or significantly contributed to the condition but also that their employment placed them at an increased risk of developing the disease as compared to the general public. Rutledge v. Tultex Corp. 308 N.C. 85, 301 S.E.2d 359.
So, what does that added requirement mean? It means that for COVID-19 and other diseases not listed in our statutes, a person would have to prove that their work caused or significantly contributed to the condition AND that the nature of their work made it more likely that they would get the disease than other people not in that line of work. As an example, with respect to COVID-19, health care workers and emergency first responders are much more likely to come in contact with someone with COVID-19, than a restaurant employee who prepares meals for people to pick up curb-side. That doesn’t mean the restaurant worker can’t contract COVID-19 from a co-worker or customer, it just means a healthcare worker or emergency first responder is more likely to contract COVID-19 because they are more likely to come in contact with someone who has the disease and the “more likely to contract the disease” is part of the legal standard that must be met in order to receive workers’ compensation benefits for COVID-19 contracted at work.
Since the response above was posted in our previous blog, new legislation has been introduced in North Carolina in the form of House Bills 1056 and 1057 that could result in significant changes to North Carolina workers’ compensation law, regarding COVID-19. House Bill 1056 would add a subsection to 97-53 the occupational disease portion of the workers’ compensation statute discussed above. Under the bill, specific classes of workers (law enforcement officers, jailers, prison guards, firefighters, emergency medical technicians, paramedics and volunteer firefighters) who contract COVID-19 would be given a rebuttable presumption that it was due to an exposure in the course of their employment.
House Bill 1057 is much more expansive and involves a new occupational disease category of “pandemic infection” and provides the rebuttable presumption to not only the types of employees listed above but also “an employee required to work during a pandemic for a business declared essential by executive order of the Governor or by order of a local governmental authority, including food service, retail, and other essential personnel.” For the listed classes of employees in the bills, they would avoid the heightened burden of proof currently associated with the catch-all provision, as COVID-19 would no longer fall under the catch-all provision, it would have its own named, subsection.
Many business leaders oppose the proposed bills. They raise a number of concerns regarding costs. The first such concern is a presumed increase in workers’ compensation coverage premiums. Another cost concern is that businesses would be directly responsible for all compensation due under the workers’ compensation act if their particular workers’ compensation policies have exclusions that would encompass COVID-19. Whether or not either of these bills become law, employers will face increased expenses due to COVID-19 claims. Let’s consider the workers who wouldn’t qualify for workers’ compensation benefits. If the employee has health insurance through their employer, the premiums paid by the employer for that health insurance could increase as employees use the health insurance to cover COVID-19 related medical costs. If the employer has a self-funded, ERISA plan for medical benefits, costs to the employer for COVID-19 related medical care will be substantially greater since the employer pays the insurance portion of the care in full. While these house bills remain pending, to qualify for workers’ compensation benefits for COVID-19, employees must still prove that they contracted the disease through work and their specific type of work put them at an increased risk for developing the disease than the general public.
FAQ: Is there a duty to provide a safe workplace in North Carolina?
Yes. Under N.C.G.S. §95-129 (1), each employer in North Carolina is charged with providing a workplace free from “recognized hazards causing or are likely to cause death or serious injury or serious physical harm to his employees…” There are numerous statutory sections and regulations addressing the meaning of that requirement. What it doesn’t mean is that employers are required to take extraordinary measures to prevent every imaginable hazard that could arise in a workplace.
The North Carolina Department of Labor’s website provides a wealth of information on OSHA regulations and CDC recommendations potentially relevant to mitigating the hazards associated with COVID-19 in the workplace. For certain businesses, the North Carolina Department of Labor provides detailed information on business / industry specific, relevant OSHA and CDC guidelines.
Using CDC guidelines and OSHA regulations to implement policies to ensure workplace safety with respect to COVID-19 transmission not only protects employees but protects businesses from OSHA citations and fines. The challenge for employers / business owners is to decide how many of the guidelines to implement for their actions to be deemed reasonable and sufficient. Following the guidelines and regulations has an added and very valuable benefit for businesses whose customers come on the premises or who have independent contractors on the premises. It would be much more difficult for a customer or an independent contractor to prevail in a civil suit regarding COVID-19 contraction, when the business can demonstrate that it followed CDC guidelines and OSHA regulations to keep the premises safe. These types of claims are based in negligence, meaning the customer / independent contractor would have to show that they contracted the virus due to the businesses’ failure to take reasonable steps to protect them from foreseeable harm. Claimants would have a difficult time meeting their burden of proof against a business that followed CDC guidelines and OSHA regulations.
FAQ: Could an employee who contracts COVID-19 at work file a civil action against the business / employer?
Yes. Whether or not such claims would prevail is a different question but there would be a cost to an employer / business to defend against the action regardless.
Those somewhat familiar with workers’ compensation law in North Carolina may be surprised by that answer because of “exclusive remedy.” Under N.C.G.S. §97-10.1, when employers and employees are subject to the provisions of the workers’ compensation act, then the remedies available to an injured worker are limited to the compensation available under workers’ compensation.
THE WOODSON EXCEPTION
The exceptions to “exclusive remedy” are deliberately limited as the workers’ compensation act was meant to be a compromise between employers and employees, creating a system with allegedly prompt recovery, but not requiring the employee to prove negligence on the part of the employer as had been the standard prior to the workers’ compensation act. In exchange, employers were able to avoid damages like pain and suffering and the types of civil claims for employee injuries that could proceed against an employer were strictly limited. The most notable exception was the one recognized in the case of Woodson v. Rowland.
In Woodson, the North Carolina Supreme Court stated, “We hold that when an employer intentionally engages in misconduct knowing it is substantially certain to cause serious injury or death to employees and an employee is injured or killed by that misconduct, that employee, or the personal representative of the estate in case of death, may pursue a civil action against the employer. Such misconduct is tantamount to an intentional tort, and civil actions based thereon are not barred by the exclusivity provisions of the Act.” Though Woodson has never been overturned, most attorneys acknowledge that for practical purposes, the exception carved out in the case is a bit of a proverbial unicorn, given that since the case was decided in 1991, no matter how egregious the facts of a case, no case has been deemed to meet the Woodson requirements. However, since the case has not been overturned and attorneys will continue to bring these cases hoping to restore recognition of the exception, businesses should not assume that there is no possibility that they could face a claim like this.
THE EXCLUSION EXCEPTION
Thankfully, few employers engage in conduct “knowing it substantially certain to cause serious injury or death.” Therefore, even if this particular exception makes a comeback, these types of claims will be few in number. Of greater concern to businesses / employers are civil claims against them that would only require a standard showing of negligence, a much lesser standard than the Woodson standard. This type of claim would have to be based on a different exception to exclusivity. Logically speaking, any claim that is “excluded” from coverage under the workers’ compensation act, could be brought as a civil claim against the employer if the employee can show basic negligence. With respect to COVID-19, evidence of negligence would most likely relate to failure maintain a safe workplace.
There is a critical distinction between a claim that is not compensable (meaning the injured worker had an injury that is covered under the workers’ compensation act but was found to have failed to meet their burden of proof for a successful claim under the law) and a claim that is excluded under the workers’ compensation act. Claims that are not compensable do not give rise to an exception allowing a civil claim against an employer, whereas, a claim that is excluded from coverage under the act, could potentially give rise to such a civil suit.
Speaking specifically of COVID-19, to evaluate exclusion, we must look back at N.C.G.S. §97-53 and particularly the catch-all provision under this subsection dealing with occupational diseases. As mentioned above, unless and until one of the proposed house bills pass, COVID-19 is not listed as a specifically recognized occupational disease under our workers’ compensation statute, so such a claim would fall under the catch-all provision. The catch-all provision specifically includes the following language “EXCLUDING all ordinary diseases of life to which the general public is equally exposed outside of the employment.” (Emphasis added) This is a two-part consideration, to claim exclusion, an injured worker must prove that COVID-19 is an ordinary disease of life AND one to which the general public is equally exposed given the injured worker’s particular job. Unlike in some other states, our exclusion doesn’t just have a single requirement that the disease be an ordinary disease of life. See Booker v. Duke Medical Center (the North Carolina Supreme Court clarified, “ordinary diseases of life are not excluded from the workers’ compensation act’s occupational disease statute, just those to which the general public is equally exposed).
With the workers’ compensation statute occupational disease subsection as it stands now, most COVID-19 claims would be excluded because only certain types of workers would be able to prove that their line of work put them at an increased risk of developing the disease. Interestingly, the types of workers with the greatest chance of meeting the standard, are the types of workers listed in the proposed revisions found in the pending house bills. For the majority of the claims that would fall into the excluded category, if there was evidence of negligence on the part of the employer that contributed to the employee’s contraction of COVID-19, then those claims would be ripe for the filing of civil suits against employers / businesses. This is an area of potentially significant liability for businesses / employers given how many claims would be excluded under the workers’ compensation act.
Anticipated defenses include the proposition that COVID-19 is not an ordinary disease of life and that classification of the disease and a failure to show that a person’s employment put them at a greater risk of developing the disease are issues of compensability, not exclusion. One obstacle for plaintiffs’ attorneys is the language our courts have used when discussing the catch-all provision. The language is often a mish-mash of terminology including statements that such claims are excluded under the act and therefore not compensable. The most logical conclusion for this mixing of terminology is that the cases in which they are appear are workers’ compensation cases in which the courts were charged with only determining whether the claim was covered under the workers’ compensation act, not whether it was excluded and thus amenable to civil suit. The argument that favors plaintiffs is that unambiguous statutes are to be strictly construed and enforced. The catch-all provision of the occupational disease subsection of the statute, specifically uses the word “excluding.” This will certainly be an area ready for some test cases. For employees and employers alike, it is important to remember that for these civil claims, the plaintiff must not only prove that the claim was excluded under the workers’ compensation act but also that the employer acted negligently in some way that contributed to the employee’s contraction of the disease.
The looming possibility of these types of civil claims, muddies the waters regarding the pending house bills. While many businesses were quick to oppose the proposed bills because they would broaden the occupational disease subsection of the workers’ compensation statute and result in more COVID-19 claims being viable, what they may have failed to consider is that leaving the statute as-is which will unquestionably result in greater numbers of excluded claims, could be opening up the Pandora’s box of civil litigation against them. Plaintiff’s attorneys would much prefer to have the opportunity to bring civil suits in these types of cases because of the compensation available like pain and suffering, which is not available in the realm of workers’ compensation. For business owners who firmly believe these types of claims will gain no traction in North Carolina, even if they’re ultimately correct, the costs of defending these actions could be considerable.
FAQ: As an employer, are there any other potential civil actions related to COVID-19, about which I should be aware?
In short, yes. With these types of issues, attorneys look to the types of claims filed not only in the state in which they practice but in other jurisdictions as well. COVID-19 civil claims have already been brought in other jurisdictions involving theories including federal wrongful death, breach of standards of care and even injunctive relief seeking orders requiring employers to provide specific types of protections before employees return to work. Corr. Officers’ Benevolent Ass’n, Inc. v. City of New York, No. 704991/2020 (N.Y. Sup. Ct. Queens Cty. Apr. 2, 2020), Rural Cmty. Workers Ass’n v. Smithfield Foods, Inc., No. 5:20-cv-06063 (W.D. Mo. Apr. 23, 2020), see also https://www.prnewswire.com/news-releases/federal-wrongful-death-lawsuit-filed-against-tyson-foods-after-employee-covid-19-death-301062019.html
Claims involving COVID-19 exposure in the workplace pose challenges for employees and employers alike. For employees who contract COVID-19 at work, prevailing in a workers’ compensation claim under our current statute requires a heightened burden of proof that in most cases would be difficult to meet; avoiding the exclusive remedy doctrine of workers’ compensation law will be challenging and vigorously opposed by employers. Regardless of whether or not the workers’ compensation claims or the civil claims prevail, there will be many filed and will be costly for employers to defend. Expanding workers’ compensation coverage might cause workers’ compensation premiums to increase and certain employers would be directly responsible for workers’ compensation benefits when insurance policies have exclusions that would include COVID-19. Conversely, keeping the limited workers’ compensation coverage available for occupational diseases as it currently stands, will contribute to the filing of more civil suits testing the opportunity to argue exclusion and avoidance of the exclusive remedy doctrine. Plaintiffs’ success in that area will result in litigation costs for the employer and exposure for much more compensation than is available under the workers’ compensation arena.
No doubt these are novel and complicated issues. One common element beneficial to both employees and employers is the implementation of reasonable safety measures in the workplace. This practice will reduce the number of employees who contract the disease at work, necessarily reducing the number of all types of claims filed and ward off most claims for injunctive relief. Implementation of such safety measures will also mitigate against the success of civil claims brought by employees, customers and/or independent contractors, because it would be difficult for plaintiffs to prove negligence in instances where businesses can prove they took reasonable steps to protect the safety of these claimants. In sum, reasonable safety measures are a win/win.