Do you believe you may have been exposed to COVID-19 at your place of business?

May 23 2020

If you or a loved one has become sick or has passed away due to COVID-19 exposure in the workplace, our hearts go out to you. While we try to reopen the economy and return to normal business operations, there may be some essential workers or emergency response workers who are affected by the ongoing pandemic. What rights do you have under North Carolina law?

In early May 2020, North Carolina passed legislation that granted immunity from civil liability for essential businesses or emergency response entities during the pandemic. The new section is found at North Carolina General Statutes, Section 66-460, is entitled “Essential businesses; emergency response entities; liability limitation.” This statute means that a customer or employee cannot sue a business for any injuries or deaths that they believe were caused as a result of being a customer or being an employee of one of these businesses. This immunity will last as long as the emergency declaration is in effect in North Carolina.

However, there are two exceptions. The first, and most likely most important exception, is found at Section 66-460(b). It provides that an essential business or emergency response entity does not receive immunity for workers’ compensation claims. Specifically, it states:

“This section does not preclude an employee of an essential business or emergency response entity from seeking an appropriate remedy under Chapter 97 of the General Statues for any injuries or death alleged to have been caused as a result of the employee contracting COVID-19 while employed by the essential business or emergency response entity.”

Section 97 of the General Statutes deals with workers’ compensation claims

The second exception is if a business engaged in “gross negligence, reckless misconduct, or intentional infliction of harm,” which is more unlikely and a difficult legal standard to meet.

This does not mean, of course, that any injury or death resulting from COVID-19 in the workplace will automatically be an accepted workers’ compensation claim. An employee would still have to prove that he or she had an occupational disease and that this was caused by the employment.  While it may be straightforward enough to document COVID-19 through medical testing, there will likely be significant disagreement about whether it was caused by work. 

Generally speaking, to prove an occupational disease, an employee must show that: (1) the disease must be characteristic of persons engaged in the particular trade or occupation in which the employee is engaged; (2) it must not be an ordinary disease of life to which the public generally is equally exposed with those engaged in that particular trade or occupation; and (3) there must be a causal connection between the disease and the employee’s job. 

This means that a COVID-19 occupational disease claim would likely be stronger for those essential workers in industries where employment directly exposed the worker to a greater risk of contracting the disease than the general public, such as health care workers or other emergency personnel. While it is not impossible to make a claim for a grocery store employee who becomes disabled or passes away because of COVID-19, it will be a harder argument due to their type of employment.

We anticipate that employers and their insurance companies will take the position that even if there was an increased risk for exposure, that the employee cannot prove that it was caused by their place of work. They may also argue that COVID-19 is not a disease that is characteristic with a particular trade or occupation, but that it is an ordinary disease of life that the general public is equally exposed to outside of employment.

In any event, North Carolina has a two-year statute of limitation for occupational disease claims, which begins to run after a person is diagnosed by a physician. If you or a loved one has become sick or passes away due to COVID-19 contracted from work, please seek legal advice as these will likely be complicated workers’ compensation claims.

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Adam G. Linett

Adam G. Linett, the founding member of A.G. Linett & Associates, PA, enjoys practicing law as a trial lawyer. After graduation from Duke Law School in 2000, he moved to New York where his work primarily focused on defense litigation and appellate work in a number of jurisdictions across the United States.

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