State News : North Carolina

Written by: Bruce Hamilton and Tracey Jones

Brief overview of the legal analysis of COVID-19 workers’ compensation exposure in North Carolina.

COVID-19 cases must be handled and analyzed on a case-by-case basis; however, based upon the current statute and case law, it is unlikely that suspected COVID-19 or actual COVID-19 cases would be considered compensable under either an injury by accident or occupational disease claim theory in North Carolina. With respect to occupational disease claims, North Carolina is an increased risk state, not a positional risk state. Even if the employee can show some increased risk, they will need to prove that any disease they contract actually came from their employment as opposed to some other type of exposure outside of their employment. Because the legal analysis behind the compensability of a COVID-19 diagnosis is very fact specific, please contact one of our attorneys to discuss your scenario in more detail.

How an increase in teleworking may affect workers’ compensation claims in North Carolina.

COVID-19 has reached North Carolina and is impacting our way of living and working every day. Many employers are relying on teleworking to keep their businesses up and running. With this change in location of work space, we are likely to see an increase in home-related injuries. Employees are allowed to work from home; however, they do not have 24/7 workers’ compensation coverage the entire time they are at home. While many will be teleworking, they will also be engaging in personal activities during this unusual period of time. It is going to be very difficult to contradict the employee’s account of when an injury occurred due to the very nature of teleworking.

How do we know the claimant was actually engaging in work at the time of an injury?

Any injuries at home will have to arise out of and in the course and scope of the employment. There is little case law in North Carolina dealing with injuries suffered by employees working remotely; however, these claims are no different from other claims in the level of proof required to establish a compensable injury by accident. Nonetheless, these claims will pose unique challenges for defendants when investigating the facts surrounding these alleged injuries. Defendants will need to thoroughly investigate the allegations and utilize recorded statements as quickly as possible before the employee retains representation. Questions should focus on the injured employee’s activities at the time of the injury, as well as the normal routine they have developed while working remotely.

An employee who is teleworking will still need to prove:

1. An accident. Was there an interruption of the normal work routine?
   • Were they doing their normal job duties? Were they doing the job in their normal way and, other than the injury, did anything unusual occur?
   • Additional questions will need to be asked about the other activities they engage in while working remotely. What was their normal schedule and what other personal obligations did they have while working remotely? Who else was in the remote location and where were they located in the remote location?
2. Arising out of the employment. The accident has to have some causal connection to the employment. One area of inquiry is whether the employee has a dedicated work space at their remote location. If the injury does not occur in the work space, then additional questions need to be asked regarding the specific activity being conducted at the time of the injury.
3. In the course of employment. This prong looks at time, place and circumstance of the injury. By having employees work remotely, employers have shifted the location of the employee’s work space, most likely to their home. We do not believe they would be considered traveling employees, which provides a much greater scope of coverage for course of employment issues. Nonetheless, other questions arise such as: When does employment begin? Normally, an employee is deemed to be in the course of their employment as soon as they are on the employer’s premises. This is the “premises exception” to the coming and going rule. When does a remote employee’s day start and end for workers’ compensation purposes? Employers might want to consider establishing general work hours for employees who are teleworking. These are extraordinary times, so some flexibility is required, but general parameters on work hours is appropriate.

Practice Tips:

• Employers should set specific work hours for employees who are teleworking and have a system for checking in and out.
• Adjusters should conduct recorded statements of any reported injuries at home as early as possible and get as much information as possible, including additional information regarding the employee’s usual activities and schedule during this unusual period of time when they are teleworking.
  • How did they set up their home office, what was their schedule on a typical day, did they engage in any other personal activities while working from home etc.?
• Carriers should review claims carefully and liberally use the Form 63 procedure for payment of medical bills without prejudice or use the Form 61 procedure when information is insufficient to accept or deny the claim.

During this time of uncertainty, our team is here for you. Please contact one of our workers’ compensation attorneys if you have any questions or concerns.