COVID-19 and Its Workers’ Compensation Implications
Mary Kate Littlejohn, Esquire and Kevin Couch, Esquire
As COVID-19 restrictions begin to lift and employees trade in their “WFH sweatpants” for their “office khakis,” employers are still left with questions about the workers’ compensation implications of a positive COVID-19 test from one of their employees. Specifically, “Is it compensable?” The lawyerly answer is of course, “It depends.” Where should we send our bill?
All jokes aside, every case is fact specific, and I would implore you to contact your workers’ compensation defense attorney regarding your specific case. Generally speaking, there are two ways the South Carolina Workers’ Compensation Commission could analyze the compensability of COVID-19: (1) Occupational Disease or (2) Injury by Accident/Single Exposure. Ultimately, under both scenarios the primary determination is causation.
An occupational disease is a “disease arising out of and in the course of employment that is due to hazards in excess of those ordinarily incident to employment and is peculiar to the occupation in which the employee is engaged.” S.C. Code Ann. § 42-11-10 (A). A helpful analysis is to go back to the statute and think about three required proofs: (1) Does the disease arise out of and in the course of employment? In other words, does this particular disease, in this particular claimant, result from this particular employment? (2) Does the employment present an increased risk of the hazard? (3) Can we attribute the disease to this increased risk? And finally, even if it does meet the three proofs, does the case fall under one of the six exclusions outlined in S.C. Ann. Code § 42-11-10(B).
Two exclusions that will probably come up frequently in COVID-19 cases: A disease will not be considered a compensable occupational disease if it “is a contagious disease resulting from exposure to fellow employees or from a hazard to which the [employee] would have been equally exposed to outside of his employment.” S.C. Code Ann. § 42-11-10 (B)(3). Additionally, an occupational disease is not “one of the ordinary diseases of life to which the general public is equally exposed, unless such disease follows as a complication and natural incident of an occupational disease OR unless there is continuous exposure peculiar to the occupation itself which makes such disease a hazard inherent in such occupation.” S.C. Code Ann. § 42-11-10 (B)(4).
Injury by Accident/Single Exposure
S.C. Code Ann. § 42-1-160 defines “injury” as follows: “‘Injury’ and ‘personal injury’ mean only injury by accident arising out of and in the course of employment and shall not include a disease in any form, except when it results naturally and unavoidably from the accident . . . .”
Case law has clarified this muddy definition. “The test as to whether the injury or death arose out of or in the course of employment . . . is whether, under all the circumstances, the employee was exposed to a greater risk by reason of his employment and duties than was imposed upon an ordinary member of the public.” Hiers v. Brunson Const. Co., 221 S.C. 212 (1952).
“[N]o slip, fall or other fortuitous event or accident in the cause of the injury is required; the unexpected result or industrial injury is itself considered the compensable accident.” Sigmon v. Dayco Corp., 316 S.C. 260 (Ct. App. 1994). To put it simply, as to COVID-19, the primary question is, can the employee prove that their employment presented an increased risk of exposure to Covid-19, and that this increased risk of exposure most probably caused their contraction of the disease?
Some states have already enacted legislation, or have legislation pending, that create a rebuttable presumption that healthcare workers who care for COVID-19 patients and who contract COVID-19, contracted it while in the course and scope of her/his employment.
South Carolina does not have any such legislation currently. Additionally, outside the workers’ compensation realm, employers must also consider OSHA and EEOC regulations as they relate to COVID-19. It is imperative that businesses seek counsel from an employment law attorney regarding these COVID-19 regulations and recommendations as they are constantly evolving. More information can be found at: https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act and https://www.osha.gov/memos/2020-04-10/enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19.
About the authors: Mary Kate Littlejohn and Kevin Couch are workers’ compensation defense attorneys at Willson Jones Carter & Baxley, PA. They work in the Greenville office and represent employers, third-party administrators, and carriers in their workers’ compensation claims. Mary Kate can be reached at email@example.com or 864-527-3285. Kevin can be reached at firstname.lastname@example.org and 864-527-3286
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