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Workers’ Compensation and COVID

Most people understand the basics of workers’ compensation. It exists to protect workers who are injured or become ill while on the job. It pays for things like medical bills and time missed from work due to injury or illness. It also protects the employer from being sued by the employee because it acts like a promise. The employer promises to provide workers’ compensation insurance and the employee, by utilizing that insurance, promises not to sue the employer. 

All public and private North Carolina employers with 3 or more employees are required by law to have workers’ compensation insurance. There are some exceptions to this rule. First, the law only applies to employees, not independent contractors. Second, the law does not apply to domestic household workers and certain railroad and federal employees working in North Carolina. 

Workers’ compensation does not apply to all injuries. Injuries that happen as a routine part of the job are not necessarily covered. For example, if you are constantly bending down to retrieve paper from the printer located under your desk and one day you throw your back out, that will likely not be covered under workers’ compensation. 

North Carolina Law and Workers’ Compensation

Workers’ compensation injuries in North Carolina fall into one of the following categories:

1. Injuries caused by an accident. These injuries are easily identifiable and include things like a broken bone, lacerations, and a herniated disk; or

2. Occupational diseases. These injuries occur due to hazards inherent to the actual job. Examples include lung disease in coal miners and asbestosis. 

In order to qualify for workers’ compensation in North Carolina, the injured worker must prove that the injury was (1) the result of an accident, (2) arose out of employment, and (3) happened during the course and scope of the employee’s job. 

COVID-19 is a novel virus that we are still struggling to understand and treat. It can spread rapidly and across all groups. According to the Centers for Disease Control (CDC), COVID-19 symptoms can take between 2 and 14 days to manifest. Most employees have to go to work, some have to travel for work. The term “essential employee” has become commonplace in our vocabulary.  If an employee is exposed to COVID-19, are they covered by workers’ compensation?

COVID-19 and Workers’ Compensation Coverage

A 2020 CNBC report found that uninsured individuals, or those who receive out-of-network care, and were hospitalized for severe COVID-19 cases could wind up paying between $42,486 and $74,310 in medical bills. Insured, and in-network individuals, were estimated to pay between $21,936 and $38,755. These numbers are extremely high, and when taken in conjunction with the fact that these individuals cannot now work, can be devastating. 

Since COVID-19 is so new, the question of whether employees who catch COVID at work are covered by workers’ compensation (which would alleviate the burden of both the medical costs and time lost from work), is a new and constantly evolving area. Unfortunately that means that there is no clear cut answer for employees.  

COVID-19 is not exactly an identifiable illness like a broken bone, so it would likely fall under the occupational disease category of workers’ compensation. North Carolina’s workers’ compensation statute specifically identifies approximately 30 illnesses and conditions considered occupational diseases. Naturally, COVID-19 is not one of them. However, there is also a general “catch all” clause covering: “[a]ny disease, other than . . ., which is proven to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside of employment.” N.C. Gen. Stat. §97-53(13).   

This clause leads to the argument that, at the very least, employees in certain occupations, like health care workers (doctors, nurses, EMT’s, home health aides, laboratory technicians) and arguably, those identified as essential employees (grocery workers, bus drivers, electricians, plumbers, funeral workers), should be covered by workers’ compensation. 

What about non-healthcare or essential employees who are still working and expected to travel for work? Arguably, the language in the statute would exclude them from workers’ compensation coverage because, due to the easy spread of the virus, they are at no greater risk of contracting COVID-19 then the general public. Even if members of the general public are not excluded from bringing workers’ compensation claims, the language of the statute could make it extremely hard to bring a successful claim. 

A number of states have passed, or are currently considering, legislation that provides workers’ compensation coverage to certain employees or at least requires that COVID-19 claims not be rejected outright. Currently North Carolina is one of the states considering additional legislation. House Bill 492 states that “law enforcement officers, firefighters, 911 dispatchers, and emergency management services personnel are entitled to workers’ compensation benefits for psychological trauma under specific circumstances.”  

North Carolina’s Industrial Commission, the agency tasked with handling workers’ compensation claims, currently allows claimants to file workers’ compensation claims for occupational disease and for injuries caused by an accident. Specifically, the Industrial Commission requires the following showing by employees: 

  1. In the case of an occupational disease claim - “1) that the employment exposed him or her to greater risk of contracting the disease than the general public, and 2) that the employment caused him or her to contract the disease."
  2. In the case of injury by accident “the employee must show the infection was contracted due to an accident (as defined by North Carolina law as an interruption of the normal job routine) arising out of, and occurring in the course of, the employee’s employment."  

One of the biggest hurdles faced by employees is of course proving that they contracted COVID-19 at work. Since it spreads so rapidly, oftentimes, people do not know where they got it from. A Charlotte, North Carolina attorney can help you understand the rapidly changing law and guide you through the process.  

Call Our Charlotte, North Carolina Workers’ Compensation Attorneys 

The Charlotte, NC lawyers at Rosensteel Fleishman, PLLC are experienced workers’ compensation lawyers. They are available to discuss your injuries with you and help you navigate the legal process. Please contact our office at 704-714-1450. There is no fee for an initial consultation. 

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