COVID-19 Updates

COVID-19 under the South Carolina Workers’ Compensation Act

April 17, 2020

Understandably, our clients have questions and concerns regarding how COVID-19 would be viewed under the South Carolina Workers’ Compensation Act (SCWCA). We are learning more about COVID-19 on a moment-by moment basis, and our team is committed to staying abreast of the legal implications as this novel issue evolves. If you have specific COVID-19 questions, we strongly encourage you to reach out to a member of our team to discuss your claim individually. While COVID-19 is a novel and evolving issue, below are some general insights based on the information currently available.

What is Not an Occupational Disease

• Chapter 11 of the SCWCA governs compensability as it relates to occupational diseases, as well as benefits and defenses pertaining to occupational disease claims (Sections 42-11-10 et al).
• Under the Act, certain diseases are not considered occupational diseases for purposes of workers’ compensation benefits and are thus excluded from coverage, such as:
  • Contagious diseases resulting from exposure to fellow employees
  • Ordinary diseases of life to which the general public are equally exposed (unless there is a continuous exposure peculiar to the occupation itself which makes such disease hazard inherent in that occupation)

What May be Considered an Occupational Disease

For a contagious disease to be compensable it would require a scenario in which an occupation, that by its very nature, places an employee at a substantially greater risk of contracting a disease than they would otherwise be exposed to outside of their employment.

• In the limited cases that have found contagious diseases compensable in South Carolina, the facts established that the injured workers’ only known exposures to the contagious diseases were at work in healthcare jobs involving direct contact with bodily fluids not typically encountered in day-today life. For example, MRSA is typically transmitted in hospitals through skin to skin contact (or contact with fluids from a MRSA infection), so it is very rarely encountered by the general public. Accordingly, in very limited circumstances and if the worker was able to prove all of the necessary elements through expert medical evidence, MRSA potentially could lead to a compensable occupational disease claim.
• Conversely, highly contagious viruses, such as the flu, are easily transmitted through airborne droplets from an infected person sneezing or coughing, or by touching a surface containing these droplets. These risks are commonly encountered by the general public in daily life both inside and outside of work. Therefore, contraction of the flu is excluded under the Act.

How Might this Apply to COVID-19

Based on what we currently understand about COVID-19, we believe the same exclusion applied to other highly contagious viruses would exclude contraction of COVID-19 from coverage under the SCWCA.

• Based on our interpretation of the Act and the Legislature’s intention to exclude community-spread contagious diseases from the purview of the SCWCA, as it is currently written, we do not believe COVID-19 would be considered an occupational disease entitling a worker to benefits under the Act.
  • The more easily transmitted and more widespread the disease becomes, the more difficult it becomes to argue that a particular occupation put an individual at an increased risk.
  • Notably, the individual would have to prove COVID-19 was contracted while at work but not transmitted by a co-worker, and was due to an increased risk peculiar to their specific employment.
  • These are hefty burdens to satisfy and as the prevalence of COVID-19 amplifies, it becomes even more difficult in most circumstances.

As of the date of this publication, we understand there are various groups seeking expansion of the Occupational Disease statute to provide coverage for first responders exposed to COVID-19 during this pandemic. We will continue to monitor these developments and if there are any changes, those changes could certainly impact our analysis. We will provide updates as they are available.

Disclaimer: This is not intended as legal advice but rather for general informational purposes only. The issues presented by COVID-19 are novel and any legal challenges that may follow this pandemic are continually evolving. For advice specific to your situation, you should contact a lawyer with our team to discuss your case further.