A partner with the Raleigh, North Carolina, workers’ compensation defense firm of Cranfill Sumner & Hartzog said in a blog post it's unlikely that the state’s comp system will cover COVID-19.

W. Scott Fuller

W. Scott Fuller, who has defended employers, third-party administrators and work comp carriers since 1992, writes that a pandemic by nature involves a contagion that affects all types of people. The virus is not expected to be linked to any particular type of business or working conditions, Fuller said.

“The conclusion that a COVID-19 claim does not fall within the coverage of the (North Carolina Workers’ Compensation) act is based upon the fact that an employee asserting a claim for COVID-19 must establish that it is an ‘injury by accident’ and/or that it is an ‘occupational disease,’” Fuller writes. “Based upon what we currently understand about COVID-19, it seems unlikely that an employee can make out a viable claim under either legal theory.”

Fuller said the phrase “injury by accident” typically requires some interruption of the normal work routine. The most likely way injured workers will get sick from being in close proximity to an infected colleague. In North Carolina, showing the workplace provided “a fortuitous opportunity for harm” is not sufficient to establish causation.

While it may be more likely that workers would allege COVID-19 is an occupational disease, Fuller said employees still carry the burden of establishing a causal link between employment and the disease.

Employees would likely have to show that something in the nature of employment resulted in an increased risk of developing coronavirus, and working near someone who was diagnosed with COVID-19 is insufficient to demonstrate an elevated risk, according to Fuller.

“In almost all cases, it is anticipated that an employer will have strong factual and legal bases for denying the compensability of a COVID-19 claim brought in North Carolina, and at most, that an employer might have altruistic or business reasons for deciding to handle a COVID-19 claim for North Carolina workers’ compensation benefits on a ‘pay without prejudice’ basis,” Fuller writes.