Are Remote Injuries Compensable in NC?
Must Employers Provide Masks at Work?

The novel coronavirus is posing unfamiliar questions. Among them: how does North Carolina address compensability of an injury that occurred remotely?

“The state does not have special rules regarding the compensability analysis of an employee working remotely or telecommuting. Those cases are analyzed exactly like every other case,” notes Bruce Hamilton, a partner with Teague Campbell. “The employee has to prove an injury by accident arising out of and in the course of their employment. The issues that come up with these cases have to do with problems of proof. In other words, there is virtually no way to independently verify what the employee says happened to cause the injury or when the injury occurred,” he adds.

“We do not have any video in the employee’s home, we cannot conduct an immediate investigation of the area where the accident supposedly took place, we do not have any coworker witnesses, and so on. The other unique problem with telecommuting cases is determining when the workday starts and ends. In other words, when is an employee in the course of employment?”

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“We recommend that employers give their telecommuting employees specific work hours, if possible. In fact, if they can have employees clock-in and clock-out that is helpful in establishing the actual hours of employment,” he says.

Employers and employees may also be wondering about the use of facemasks, respirators, gloves, and other personal protective equipment. “There is no specific standard covering COVID-19, and the OSHA general duty clause has not been interpreted to require all employers to provide PPE or require employees to wear PPE,” note Teague Campbell attorneys Patrick Scott and Natalia Isenberg.

“As was the case prior to COVID-19, such determination is left to the employer and is based on the employer’s assessment of workplace risk factors. However, employers should now include COVID-19 concerns in their risk-factor assessment, and OSHA has provided guidance to employers in classifying employees’ risk,” they add.

If an employer decides to implement a PPE policy, the policy should be in writing and should be distributed to all employees. The written policy should generally include:

An explanation with facts addressing the reason for the policy (e.g., to protect everyone involved);

  • Employees covered under the policy (e.g., all employees);
  • Instruction for proper use;
  • Specifications on when face coverings are required (e.g., at all times inside the building);
  • Instructions for disposal/cleaning; and
  • Consequences for not abiding by the policy. Employers should have all employees sign the policy, and should continue to update the policy based on the most current guidelines.