N.C. legislators should protect health care workers

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Matt Harbin

Health care workers serving coronavirus patients aren’t necessarily covered by the state’s workers compensation laws. That needs to be changed immediately, contends Matt Harbin, a shareholder  at The Law Offices of James Scott Farrin and a member of the American Association for Justice and the Workplace Injury Litigation Group. He is also past-Chair of  the North Carolina Advocates for Justice’s Workers’ Compensation section. He has been board-certified in workers’ compensation since 2006.

Harbin shared his views in this op-ed.

Medical professionals and first responders on the frontline of the coronavirus pandemic face known exposure to Covid-19, yet their options for dealing with the disease should they contract it are far from clear. People willingly putting themselves at risk to protect our lives deserve better. The N.C. General Assembly should take steps to remedy this harrowing situation as soon as possible.

This month we are likely looking at more than 20,000 cases of the disease and 51 deaths per day in North Carolina.  We are staring down a projected shortage of beds. Masks and protective equipment are in short supply. OSHA has categorized first responders as being at a high or very high risk of exposure.  Thousands of these workers worldwide have contracted Covid-19. More than 100 medical professionals worldwide have died as a result of the disease. And still, as of now, there is no certain protection for these frontline workers in North Carolina.

As background, in North Carolina, workers who contract an illness while on the job may have coverage through the state’s Workers’ Compensation Act.  Coverage for workers’ compensation injuries is divided into two broad categories: injuries that occur in work-related accidents and those caused by an “occupational disease.” Occupational diseases may either be a medical condition caused by the nature of the work, or a listed disease that’s deemed by state lawmakers as commonly associated with an occupation. Certain conditions like asbestosis and silicosis are assumed to be occupational diseases in nature. They fall under a category that is listed and covered by state law.  A third category involves an occupation that places someone more at risk than the general public to contract a disease. The Act is meant to provide coverage to those whose injuries are “wreckage of industry.” For example, workers who sustain repetitive motion injuries working in manufacturing.

Even though OSHA has recognized that certain occupations will carry with them a high risk of exposure, this is no guarantee that a health care worker or first responder would have coverage under North Carolina law.  To better assure coverage, the legislature would have to make COVID-19 a listed provision. Other states are providing coverage under workers’ compensation laws. According to the National Council on Compensation Insurance, Ohio, New York, Minnesota, Alaska and California have all passed legislation covering COVID-19 under workers’ compensation for some employees. Advocacy groups are pushing for coverage in other states as well.

But even coverage under a listed provision or as may be mandated does not provide swift and sure relief to families who may be the most impacted by the condition. Often, even when conditions are listed and presumed to be covered, there are complex medical causation questions that a victim’s family will have the burden of proving in Court.  These cases can still take years to litigate.

There is also a bigger question as to whether a pandemic that is unprecedented in nature fits in a system that is designed to protect workers injured as the result of industry.  The health care system is already strained. Coverage of this type of condition is not really a “wreckage of industry.” We should be reluctant to push the costs of these pandemic claims onto the state and local governments, non-profit hospitals, and front line businesses that are already bearing much of the burden in this situation.  Just as it would be cruel to leave frontline workers unprotected, it is unjust to leave the burden solely on the employers.

So where does all this leave frontline workers and the General Assembly? Current law provides only short-term protection for people who contract the disease at work. For those rare cases where the consequences of the disease are most severe, the General Assembly and Congress should consider state and/or federal funding for coverage. Precedent exists in North Carolina: We have provided coverage for people injured by vaccines and compensation for victims of our state’s Eugenics policy. We could consider similar coverage for those severely impacted by COVID-19 at work.

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