{"id":4967,"date":"2020-06-19T08:45:00","date_gmt":"2020-06-19T12:45:00","guid":{"rendered":"https:\/\/joemillerinjurylaw.com\/?p=4967"},"modified":"2020-06-22T08:46:15","modified_gmt":"2020-06-22T12:46:15","slug":"faqs-about-covid-19-and-workers-compensation-in-north-carolina-and-virginia","status":"publish","type":"post","link":"https:\/\/joemillerinjurylaw.com\/faqs-about-covid-19-and-workers-compensation-in-north-carolina-and-virginia\/","title":{"rendered":"FAQs about COVID-19 and Workers\u2019 Compensation in North Carolina and Virginia"},"content":{"rendered":"

The <\/span>National Council on Compensation Insurance<\/span><\/a> (NCCI) has posted a number of questions and answers about how the novel coronavirus is affecting work injury cases across the country. Some of the questions and answers follow. For more information, consult with an experienced North Carolina or Virginia workers\u2019 compensation<\/a> lawyer to discuss your rights and your claim. The answers are updated through April 30, 2020.<\/span><\/p>\n

Is COVID-19 compensable under state workers compensation acts?<\/i><\/b><\/h3>\n

This is an open question that is being litigated. Workers\u2019 compensation generally covers occupational illnesses that happen through work. Occupational insurance coverage normally does not include illnesses that are just as likely to occur away from work. So, the question being litigated is whether COVID-19 is more likely to occur at work than away from work. Advocates for coverage assert that for essential worker, the question should be answer in the affirmative. They say the healthcare workers, delivery workers, first responders, and other essential workers are more likely to get COVID-19 while serving the public than at home. Some states are passing or considering passing legislation to answer this question. Until the state passes a law, the question will be resolved by the courts on a case-by-case basis.<\/span><\/p>\n

Where can I find state-specific legislative activity related to COVID-19?<\/i><\/b><\/h3>\n

Each state, including North Carolina and Virginia, has passed either legislation, issued executive orders, or both in regard to a variety of COVID-19 business and employment issues.<\/span><\/p>\n

\u00a0So far, as between the two states, only North Carolina has been moving forward with passing <\/span>legislation<\/span><\/a> to cover workplace illnesses or death of essential workers due to COVID-19. The orders mostly apply to how cases will be conducted. As of the date of this writing, those efforts are still pending.\u00a0<\/span><\/p>\n

You can find a good overview of ongoing State legislative initiatives across the U.S. specifically with respect to coverage of employees exposed to COVID-19\u00a0 <\/span>here<\/span><\/a>.\u00a0<\/span><\/p>\n

An employer has limited operations due to COVID-19. As a result, some employees are placed into new roles for the duration of the pandemic. What classifications could be assigned to these employees?<\/i><\/b><\/h3>\n

Many businesses are shifting to online and curbside pickup services. The employees are shifting from working as waiters for example to helping with deliveries. Generally, the main issues will be whether they are considered employees and what their pay is. Employees are entitled to work injury benefits if they are injured while working. Independent contractors are generally not entitled to benefits for a workplace injury \u2013 through the state workers\u2019 compensation system. A skilled work injury lawyer can explain what calculations (Pre-Covid 19 or Post-Covid 19) will be used to determine your average weekly wage and whether you qualify as an employee or an independent contractor.<\/span><\/p>\n

Is there any guidance regarding data reporting and claims coding related to COVID-19?<\/i><\/b><\/h3>\n

Yes. New <\/span>reporting requirements<\/span><\/a> set forth by the Department of Labor and OSHA have been created for employees who contract COVID-19.<\/span><\/p>\n

Has Congress or the administration taken any specific actions that would directly impact the state-based workers compensation system?<\/i><\/b><\/p>\n

So far, no specific federal legislation or regulatory initiatives that would \u201cimpact the workers compensation system\u201d have been acted. There are some indirect affects due to the passage of the CARES act to help employers keep more employees on their payrolls. \u201cThe House of Representatives Committee on Financial Services has proposed considering a Pandemic Risk Insurance Act (PRIA).\u201d Other than that, as mentioned in previous blogs, <\/span>many states<\/span><\/a> either have passed or are in the process of passing legislation that would give first responders or in some cases, all essential workers a presumption that if they contract illness from COVID-19, that it was contracted on the job, and therefore compensable.\u00a0<\/span><\/p>\n

Unfortunately, Virginia is not among those states and as I\u2019ve said in <\/span>a previous video<\/span><\/a>, this is a travesty and must be addressed when the legislature goes back for its next session in Richmond. I continue to urge all residents of the Commonwealth to contact their state Representatives and urge that legislation is introduced that at a minimum, protects our frontline healthcare workers in the event they contract the virus and become sick.\u00a0<\/span><\/p>\n

On the other hand, North Carolina is moving forward to address this problem with <\/span>House Bill 1057<\/span><\/a>. Please urge your North Carolina State Legislators to pass this bill into law.\u00a0<\/span><\/p>\n

Does the Families First Coronavirus Response Act (FRCA) address workers compensation, including the treatment of payroll? Will payments by employers for qualified paid sick leave and qualified family and medical leave expansion under the Act be used in the calculation of workers compensation premium?<\/i><\/b><\/p>\n

\u201cNone of the provisions of the Families <\/span>First Coronavirus Response Act<\/span><\/a> (FRCA) expressly apply to workers compensation.\u201d \u201cIn March 2020, Congress passed the Act in response to the COVID-19 pandemic. In general, the Act expands food assistance, addresses unemployment benefits, and provides emergency paid sick leave, emergency expanded family and medical leave, and tax credits.\u201d<\/span><\/p>\n

Th FCRA does modify and expand family and medical leave coverage\u00a0 (FMLA)\u2013 \u201cby requiring employers with fewer than 500 employees to provide paid leave to eligible employees for a qualifying need related to a public health emergency.\u201d \u201cQualifying need\u201d generally applies to employees who can\u2019t work (or telework) because they need leave care for a child under 18 \u2013 if the child\u2019s school or place of care is closed or the childcare provider isn\u2019t available \u2013 due to the public health emergency. <\/span>\u201cPublic health emergency\u201d means an emergency with respect to COVID-19 declared by a federal, state, or local authority. Previously, the FMLA only applied to employers with more than 500 employees.\u00a0<\/span><\/p>\n

\u201cThe section in the Act on Emergency Paid Sick Leave (EPSLA) provides that an eligible employer will provide an employee with paid sick time if the employee is unable to work or telework for reasons stated in the Act such as:\u201d<\/span><\/p>\n