The Rights of Delivery Service Workers to Workers’ Compensation Benefits in North Carolina and Virginia

Posted on Wednesday, May 27th, 2020 at 3:18 pm    

As the COVID-19 pandemic continues to force the closing of numerous businesses and still requiring many people to stay in their homes, delivery workers have become essential to lives of everyone in North Carolina and Virginia. Homeowners and essential business rely on delivery workers to provide their medical products, their groceries, their entertainment, their clothes, and many other products. Executive Orders issued by the Governors of both Virginia and North Carolina consider such workers to be “essential” to our lives and therefore except from many of the lockdown rules. 

Some food delivery workers have their own vehicles and work for companies like Grubhub, Uber Eats, or others. Many delivery workers are employed by local restaurants. Other types of delivery workers use vehicles owned by retailers and big shipping companies such as Amazon or UPS.

What these workers all have in common is that they may be risking their lives by delivering products through the people they came into close contact with during their workday and the products, packaging, doorknobs, and other things they routinely touch. What they also have in common is that they risk being hurt on the job while getting their delivery items, transporting their goods, and making the delivery to the homes of customers who have made increasing demands on such delivery services due to the lockdowns.  

Unfortunately, in Virginia, as has been explained in a previous article and video, if such a worker contracts COVID-19, he or she will face a very steep uphill climb on denied claim that has little chance of success. 

In North Carolina, on the other hand, at this writing, at the end of May, 2020, there is are two bills currently under consideration by the Legislature in Raleigh which would give all workers deemed “essential” by the Governor to be entitled to a presumption that they contracted COVID-19 on the job if they become ill from it. 

If you reside in North Carolina we urge you to call your State Legislators and Senators to voice your support for House Bill 1056 and House Bill 1057

Why Virginia currently has no similar bill being sponsored or under consideration is a mystery, especially with a Democratic-Controlled Legislature. 

Besides COVID-19, common types of accidents that can occur during a delivery include:

  • Traffic accidents. Even though the roads may be less travelled these days, delivery drivers run this risk of being injured or killed by another driver who speeds, runs through a red light, or is negligent for any reason. The delivery driver can also be harmed if he/she loses control of his/her vehicle for any reason such as the driver’s own negligence, wet roads, potholes, or any condition. While it is critical that the driver be making a delivery for his/her employer when the accident occurs, there is no need to prove fault. There is also a risk as an injured worker crosses the street to deliver a package that he or she can be struck as a pedestrian by a moving vehicle. Fault is not required in workers’ compensation cases. The main requirements are that the employee:

 

    • Have a workplace “accident” and 
    • The accident causes the worker to become injured.

It is very important to also remember that if the injured worker is hurt due the negligence of another driver, he or she would also have what is referred to as a third party claim against the driver, in addition to the workers comp claim. 

At Joe Miller Law, we handle many cases where both types of claims—the Workers Comp and the Personal Injury—as both are necessary to pursue as a result of the same car accident. 

You need to know that the interactions between the realm of Workers Comp and Personal injury can be quite complex and you should definitely not attempt to resolve either claim without consulting an attorney familiar with the complex interplay between comp and personal injury claims.  Settling your PI claim, for instance, without notice to, and permission of the comp insurance company could have grave implications for your comp claim. 

  • Slips and falls. Delivery workers can slip and fall on loose or broken items in the store or company where they work. They can also be injured when they make a delivery because they trip on stairs, fall on slippery surfaces, on broken tiles.

 

  • Overexertion. Delivery workers may need to lift, push, pull, or place heavy objects and boxes while making a delivery and may injure themselves as a result of pushing or lifting an extremely heavy package.  

Other possible delivery service accidents that can cause a delivery worker to lose time from work include forklift injuries, dog bites, and repetitive stress injuries; however, repetitive stress is generally not going to be compensable unless it involves carpal tunnel syndrome. 

The employment status requirement

Generally, workers in North Carolina and in Virginia must be employed by the delivery service, restaurant, retail store, or another business. If a worker is an independent contractor, that delivery worker will likely not be entitled to workers’ compensation benefits.

Experienced workers’ compensation lawyers fight to show that a worker is an employee and not an independent contractor. It is not a determining factor that the employer says the worker is an independent contractor or even if they signed some kind of bogus “contract” or “agreement” that they are an independent contractor. 

Whether someone is classified as an employee or an independent contractor depends on various factors that the Commission will consider. 

At the core of these factors is the ability of the employer to control when and how the worker does his/her job. Some of the factors that help determine employment status include:

  • How the worker is paid. A W-2 implies employment status. A 1099 implies independent contractor status.
  • Who the employer is. Generally, workers who drive directly for a restaurant such as Domino’s or Pizza Hut are more likely to be considered employees than delivery workers who work for a delivery service such as Grubhub or DoorDash.  
  • The hours worked. The more hours a delivery worker works for one company, the more that suggests and employee work status.
  • The tools of the trade. Delivery workers who use company tools and equipment or are required to wear a company uniform provided by the employer are more likely to be considered employees and not independent contractors. If the company provides a delivery vehicle, vs the person using their personal vehicle to make deliveries, that is more indicative of direct employment. 

Occupational illnesses and COVID-19

Generally, workers are entitled to worker’s compensation benefits if they suffer an occupational illness. To qualify, the worker must:

  • Be an employee of the company
  • The illness must be due to workplace conditions
  • The illness or disease can’t be attributable to non-workplace conditions. 
  • The worker should be at increased risk of acquiring the illness due to the type of job he/she does and where the work is done. 

A common example of occupational illnesses that are covered by state workers’ compensation laws are:

  • Workers in coal mines who suffer black lung disease or other respiratory orders
  • Workers who work with asbestos as part of their construction job
  • Workers who suffer heart failure because of the stress of their job such as police work

Most likely delivery workers who develop COVID-19 would NOT be awarded workers’ compensation benefits based on an occupational illness under the current laws. First of all COVID-19 is not in the list of covered Occupational Diseases. Secondly, it would be considered an “ordinary disease of life,” meaning something that could be acquired anywhere, and something to which the public is also exposed. 

This is clearly a very unfair situation, particularly for our cherished healthcare workers fighting the pandemic on behalf of other citizens. How can this be fixed? 

The solution is for the states to pass laws authorizing benefits for COVID-19. Currently, North Carolina and Virginia authorize benefits for some specific occupational illnesses – but COVID 19 has not yet been added to the list; however, as mentioned previously, North Carolina has a bill proposing that it be added to the list of presumed occupational diseases for healthcare workers. 

For some workers, such as healthcare workers, one would certainly think that they are at great risk for contracting the coronavirus because they work with numerous infected patients. For food delivery workers and other delivery workers, a case can be made that they are at increased risk of developing the disease too; however, unless and until the Virginia or North Carolina Legislature remedies the situation by way of passing new laws, any such workers attempting to file a workers comp claim for COVID-19 infection will face a denied claim and a long path to a Hearing before the Commission.  By then, the worker suffering from a COVID-19 infection could very well be incapacitated on a respirator, or deceased. 

This situation is certainly terribly unfair, but there is an easy fix, which is for lawmakers to pass legislation to include COVID-19/Coronaviruses and/or Pandemic diseases in the list of occupational diseases, at least for healthcare workers. Another solution would be to provide a rebuttable presumption that anyone who works in an essential industry during the pandemic who becomes ill from COVID-19 has a compensable workers compensation case. 

As of this writing only North Carolina has under consideration two bills which will fix this unfair situation. House Bill 1056 would count Coronavirus as an occupational disease entitled to a presumption of compensability and House Bill 1057 ,would give a presumption of compensability from pandemic diseases not just to health care workers, but all workers deemed “essential” by Executive Order of the Governor during a pandemic. 

Right now, in our current situation, pursuant to Roy Cooper’s Executive Order, “essential workers”  would include many more workers than just healthcare workers, but also warehouse and delivery workers, and many others.   

Tragically, there is no such bill under consideration in Virginia. See my video pleading with citizens to contact their Virginia State Representatives to voice their concern about this very important issue. 

Should we not at least cover our frontline healthcare workers and give them workers compensation coverage in the event they become ill or die as a result of their exposure to COVID-19? Please call or email your Virginia State Representative or Senator and let him or her know that this is really a travesty and that you demand that this be fixed immediately. Tell them that North Carolina is already ahead of Virginia and tell them about NC House Bill 1056 and 1057. Why has Virginia not stepped up? All they need do is copy the language of the proposed NC Bills, and pass them into law here in Virginia. 

Problem solved! 

North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. has helped thousands of injured workers get the full benefits they deserve for workplace accidents and for occupational illnesses. He fights to show that you’re entitled to benefits and that you shouldn’t be forced back to work before you’re ready. He then demands payment for all reasonably necessary medical and the percentage of lost wages that you’re entitled to. He also negotiates long-term settlements. To discuss your work injury claim, whether you’re a food delivery worker or any type of worker, please phone Joe Miller, Esq., at 888-694-1671 or use my online contact form to speak with an experienced work injury lawyer.