As North Carolina continues to reopen, many employers are left wondering the extent of their liability for employees contracting COVID-19. The debate on the matter has ranged from desperate pleas of employees to hold employers liable for unsafe work environments, to demands for civil immunity by businesses and healthcare workers. Senator Mitch McConnell has gone so far as to state that the current legal atmosphere is primed to incite “the biggest trial lawyer bonanza in history.”
State workers’ compensation laws generally favor employers when it comes to flu season.
Under typical state workers’ compensation laws, routine transmissible viruses such as the common cold or chickenpox do not provide employees with a valid claim for worker’s compensation. Some states, including Minnesota, Iowa, Nebraska, and North Carolina, provide limited protection against maladies which are defined as “occupational diseases.” The distinction between ordinary diseases of life and “occupational disease” depends on the extent to which the general public is “equally exposed outside of employment.” Generally speaking, only those diseases that are particular to the occupation are compensable. In fact, North Carolina recognizes less than thirty specific occupational diseases for the purposes of workers’ compensation. These include such unlikely events as manganese poisoning or contracting psittacosis, colloquially known as parrot disease. If an employee contracts one of these diseases, he or she must still prove that his or her employment “caused or substantially contributed to the development” of that condition.
In the rare circumstance that commonplace diseases are covered by state workers’ compensation, employees generally shoulder the burden of proving the nexus between contraction of the virus and their course of employment. Employees must prove the contraction of the disease arose out of and in the course of employment. In North Carolina, if a disease does not fall within the catch-all provision of occupational diseases, a claim for workers’ compensation, based on contraction of a disease, will not have any merit.
COVID-19 is quickly shaping employer liability for commonplace diseases.
Given the easily transmissible nature of COVID-19, proving employer responsibility can be a difficult hurdle for employees. Health officials have employed the use of contact tracing, a system by which an individual who has tested positive for COVID-19 is asked to disclose people with whom they have recently had close contact with and places they have recently been. This is done in order to identify individuals who may have been exposed to the virus and even where and from whom the infected individual contracted the virus. But contact tracing is failing in many states, including North Carolina. The state’s health secretary recently told state lawmakers that its tracking program was hiring outside workers to keep up with a steady rise in cases, as a number of other states have done.
However, some states have introduced legislation that shifts the burden of proof from the shoulders of employees to that of the employer and eliminate the need for contact tracing in proving employer liability. States have done this by passing bills or signing executive orders that create a presumption of workers’ compensation coverage for emergency personnel, healthcare workers, and essential workers. However, due to the ongoing nature of the pandemic, some of the initial legislation has since expired. In California, Governor Gavin Newsom signed Executive Order N-62-20, which created a rebuttable presumption that any employee who tested positive for COVID-19 contracted it in the course and scope of employment, so long as that employee tested positive for the virus within 14 days after working on-site on or after March 19, 2020. However, that executive order expired 60 days after it was signed into law and has not been renewed or extended.
Proposed legislation in North Carolina could eliminate the uphill battle employees face in holding employers liable for contracting diseases.
In North Carolina, legislation is pending that would provide a rebuttable presumption of compensability for covered employees who contract COVID-19 in the course of their employment. This presumption asserts that contraction of COVID-19 by a covered person is the result of exposure in the course of employment.
“Covered employees” would include certain first responders, healthcare workers, and essential workers. Essential workers are defined as 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, including food service, retail, and other essential personnel.
The presumption may only be rebutted by “clear and convincing evidence.” This burden of proof is notably higher than the preponderance of the evidence standard which is used in the majority of civil liability matters. As a result, employers would have to prove that it is highly probable or likely certain that an employee did not contract COVID-19 in the course of employment. By contrast, if the proposed legislation had instead used a standard of preponderance of the evidence, employers would merely have to prove that it is more likely than not that the employee contracted COVID-19 outside the scope of employment.
However, it is unclear whether this proposed bill will ever be signed into law. Originally proposed in early May, the bill has since been stagnant after passing the first reading in the House.
State governments are not alone in their attempts to adapt current law to address the particular needs of this pandemic.
As Congress continues to discuss the next coronavirus stimulus package, one bill in particular has become contentious in the negotiations. The proposed version of the Safe to Work Act bill would provide a significant liability shield to a number of businesses for anticipated COVID-19-related lawsuits. This Act would forge a liability shield with retroactive effect for employers and others “to discourage insubstantial lawsuits relating to COVID-19 while preserving the ability of individuals and businesses that have suffered real injury to obtain complete relief.” This broad protection would include not only businesses, but healthcare providers, schools and universities, and nonprofits.
The Bill creates an exclusive remedy, with limited exceptions, for COVID-19 exposure claims related to injuries occurring between December 1, 2019, and the end of the public emergency declaration. To succeed on a claim, an employee would need to prove, with clear and convincing evidence, that (1) a business did not make reasonable efforts to comply with applicable governmental standards and guidance, (2) the business engaged in gross negligence or willful misconduct that caused employee exposure to COVID-19, and (3) that this exposure caused the employee’s injury. The bill’s proposed language is broad enough to define injury as not only physical but mental and emotional injuries.
While the previously mentioned trend in state legislation is to buttress the claims of employees for workers’ compensation, this proposed federal legislation has quite the opposite effect. Rather than mitigating the demands on employees who may contract COVID-19, the Safe to Work Act makes it far more difficult for employees to succeed on their claims.
If the federal government does not pass the Safe to Work Act, or any other federal law regarding workers’ compensation during COVID-19, each individual state will be on their own in deciding how to address this issue. As the pandemic continues and many are wary of COVID-19 ever reaching a terminus, employees and employers anxiously await decisive action by federal and state governments.