Following is outside counsel’s response to PGA regarding workers comp claims and COVID in NC, VA and TN.
The North Carolina Office of State Human Resources has published an FAQ for State Employees. According to the FAQ, whether alleged transmission of COVID-19 at work implicates workers’ compensation benefits is a fact-intensive inquiry under North Carolina law. In order to trigger workers’ compensation, COVID-19 must be held to be an ‘occupational disease.’ To determine whether a sickness is an ‘occupational disease,’ North Carolina courts analyze whether the occupation in question puts the employee at a greater risk of exposure than the general public. For example, COVID-19 may be more likely to be held an ‘occupational disease’ for first responders, doctors, and nurses, than it would for office IT professionals or construction workers. Given the highly infectious nature of COVID-19, there will be substantial causation issues for any employee seeking to claim that their transmission was work-related. The highly infectious nature of the disease may also rebut any argument that a particular occupation places its employees at greater risk of infection than the general public. North Carolina OSHA advises that if a state employee becomes ill and it is determined to be work-related in accordance with the Workers’ Compensation Act, the Workers’ Compensation Policy for state employees applies. If the state employee’s illness is determined not to be work-related, the Sick Leave Policy applies.
FAQ: https://oshr.nc.gov/coronavirus#if-i-contract-coronavirus
NC League of Municipalities FAQ on Workers’ Compensation and Coronavirus: https://www.nclm.org/resourcelibrary/Pages/COVID-19/WC-FAQs.aspx
The same analysis would apply to the private sector in North Carolina.
While there was legislation is pending in the General Assembly that would have provided a rebuttable presumption of compensability for covered employees who contract COVID-19 in the course of their employment (e.g. certain first responders, health care workers, and employees required to work during a pandemic for a business declared essential by an executive order of the Governor or by order of a local governmental authority, etc.)—that all died on the floor earlier this summer.
As an aside, those we know who practice workers’ compensation defense here in North Carolina are denying all COVID-19 claims outright—due to the significant causation concerns.
VA – no presumption
Tenn – no presumption
There were bills introduced in both the Tennessee House and Senate (identical language) that would create a rebuttable presumption that a COVID-19 infection is an occupational disease arising in the course of employment if 10 or more employees at the same location have contracted COVID-19 or if the employee is an “essential worker.” However, the Senate bill failed in committee.
