Sunday, October 17, 2021
In Pennsylvania Case, Worker did not Commit Benefits-Disqualifying Misconduct by way of his Inability to Engage in Direct-Observation Urine Test
The Pennsylvania Commonwealth Court, affirming the WCJ and Board, has held that the claimant, after an acknowledged injury, successfully proved his ongoing TTD case, despite the employer’s argument that he had (this writer’s term) engaged in post-injury misconduct (to wit, a purported willful refusal to undertake a drug test) such that he had been fired for the same and was necessarily not available for potential modified work. The WCJ – the Board and court explained – had found as hard fact that the claimant, after having provided the required urine sample, had been unable to provide a second under-personal-observation sample, and hence he had not in fact engaged in a willful refusal to undergo drug testing.
The case is Bear Staffing v. Shawn Logan (WCAB), No. 949 C.D. 2020, filed October 15, 2021, 2021 WL 4806715 (Pa. Commw. 2021).
As noted below, the Ohio Supreme Court, in a case called Lunsford, addressed the issue of direct-observation urine screening in an August 2020 case.
Claimant, Logan, was employed – via the defendant staffing company – at a chocolate factory. He fell and struck his head, became unconscious, and was taken away to the emergency room. The next day, he reported, as requested, to WorkNet. There, he was negative for alcohol use. He also provided a urine sample, but it exceeded the temperature threshold (100 degrees), so the sample was considered invalid. Claimant was immediately asked to provide a second sample. He entered a private room with the WorkNet physician Dr. Oteri (later to testify) for personal observation of the second urinary discharge. Claimant, however, was to state that he was unable to provide a second sample (1) immediately after the first; and (2) under personal observation. He thereafter left the facility angry and objecting that the process violated his privacy rights.
The carrier issued a medical-only NCP but, at the same time, employer fired claimant. Employer, throughout, took the position that claimant, by being fired for violation of the drug-testing policy, had committed such misconduct that he could not be considered for modified work. Employer hence took the position that the immediate cause (DBT term) for claimant’s loss of earning power was not his injury but, instead, his own fault.
In the claim-petition proceedings which followed, the claimant testified and also presented his medical expert. Employer presented an IME – which had supplied an opinion that supported a cross-petition for termination. Employer, meanwhile, presented its representative to explain the firing, and the testimony of Dr. Oteri and another WorkNet employee as well.
The WCJ granted ongoing benefits; he “expressly [and repeatedly] credited Claimant’s testimony that he did not intentionally refuse to comply with Employer’s drug-testing policy, and that he was unable to comply because he could not produce a second urine sample while being observed….” Meanwhile, the judge generally credited employer’s testimony that it had drug a policy and that claimant had agreed to the same when first employed. As to the medical, he credited claimant’s physician as to disability and discredited the IME.
The Appeal Board affirmed, as has Commonwealth Court.
True, certain post-injury conduct on the part of an injured worker that results in termination can act as a superseding cause (DBT term) in the disability analysis. This is so if the firing disqualifies the worker from presumably available modified duty. See Stevens v. WCAB (Consolidation Coal Co.), 760 A.2d 369 (Pa. 2000) (“once a loss of earning capacity has been demonstrated, the claimant generally should be entitled to disability benefits; however, such benefits are not warranted where the employer can demonstrate that employment is available within the claimant’s restrictions or would have been available but for the claimant’s lack of good faith resulting in a discharge from employment.”). And see Edwards v. WCAB (Sear’s Logistics), 770 A.2d 805 (Pa. Commw. 2001) (principle applied to disqualify claimant).
The conduct, however, does not precisely equal willful misconduct as defined under the unemployment compensation law. In workers’ compensation, the leading case articulates the test of willfulness for bad faith/fault purposes as follows: “to make out ‘bad faith’ or ‘fault on the part of the discharged claimant,’ if an employer only shows that he or she ‘would if he or she could,’ then ‘bad faith is not shown and benefits should continue ….; but if an employer establishes that the claimant ‘could if he or she would, and didn’t,’ ‘bad faith is established and a claimant is not entitled to ... benefits.” Slip op. at 12-13 (citing Virgo v. WCAB (County of Lehigh-Cedarbrook), 890 A.2d 13 (Pa. Commw. 2005)).
Here, the court stated, “[t]he WCJ’s findings … amply support the proposition that, with respect to providing a second urine sample under observation, Claimant ‘would if he could,’ but he could not.”
In essence, the manner in which the WCJ found the facts (a point which both Board and court emphasized) as to the WorkNet encounter was the beginning and end of the critical analysis.
Note 1: The claimant argued on appeal that the employer’s proofs of supposed forfeited job availability were deficient, as no specifically-forfeited job meeting claimant’s restrictions had been evidenced. The court identified but did not decide the issue. The point is certainly of interest; with the rise of the contingent workforce and its many temp and staffing agencies, how the latter are to accommodate light-duty workers has been an issue. Presumably their clients are not interested in providing such work – the whole idea of using a staffing company is flexibility and the lean payrolls that flexibility facilitates. Staffing companies, meanwhile, have no real worksites of their own.
Note 2: In 2020, the Ohio Supreme Court addressed a similar situation involving direct-observation. Lunsford v. Sterilite of Ohio, 165 N.E.3d 245, 2020 WL 5033054 (Ohio 2020). This type of requirement is apparently widespread. See Angela Childers, Ohio Employers Have Right to Directly Observe Workers’ Urine Screens, Business Insurance (8.8.2020), https://www.businessinsurance.com/article/20200828/NEWS08/912336377/Ohio-employers-have-right-to-directly-observe-workers’-urine-screens-Lunsford-v?utm_campaign=BI20200828BreakingNewsAlert&utm_medium=email&utm_source=ActiveCampaign&utm_campaign=BI20200828BreakingNewsAlert&utm_medium=email&utm_source=ActiveCampaign.
Thursday, August 26, 2021
New Article Explains Pennsylvania Law as to Compensability of Infectious Diseases, Reports on COVID WCJ Adjudications
The Pennsylvania Workers’ Compensation Act features no statutory presumption of causation for COVID-19. Yet, infectious diseases, including COVID, were, and are, as a matter of legal causation, compensable under the law.
They are compensable under our state’s two tracks of recovery approach. The first track of recovery for infectious diseases is under the occupational disease provisions of the law. Section 301(c)(2) establishes that the term “injury” encompasses occupational diseases. One cross-references, meanwhile, Section 108 of the Act for the familiar list of those occupational diseases. They are paired with occupations in which certain diseases have been shown – or are thought to be – special hazards. The worker who suffers from the disease who has labored in the associated occupation enjoys a rebuttable presumption of causation. The presumption is found in Section 301(e) of the Act.
The second track of recovery for infectious diseases is under the injury section itself, that is, Section 301(c)(1). As detailed below, the Supreme Court, in 1987, declared that “injury” means an adverse or hurtful change. This was so held in the landmark case Pawlosky v. WCAB (Latrobe Brewing Co.).
Of course, seeking to prove medical causation is another issue. In this regard, many physicians seem shy to assign work causation in disease cases. Too many opportunities for hazardous exposures exist for physicians, even sympathetic treating doctors, to want to vouch for causation in such cases. This seems to be the case in the realm of COVID.
At the time of this writing (August 2021), two Pennsylvania workers’ compensation judge decisions exist where claims of illness from work-related COVID exposure were considered. In one, the claimant (a nurse) did not submit an expert report, and her claim failed. In the other, notably, the claimant (the widow of a correctional officer) did submit such expert medical evidence and, aided by impressive exposure evidence, prevailed in her claim.
In a new article, the writer explains the Pennsylvania statutory scheme, including how the long-existing general presumption law (Section 301(e)) works for enumerated diseases, shows that many infectious diseases have been compensated over the years, and reports briefly on the two new trial-judge-level COVID adjudications noted above.
See David B. Torrey, Infectious Diseases: Compensability, COVID-19, and Related Issues Under the Pennsylvania Workers’ Compensation Act, Pennsylvania Bar Association Workers’ Compensation Quarterly Newsletter, Volume VII, No. 147, pp.33-45 (August 2021).
Download Infectious Disease Compensability Under the Penna Work Comp Act
Wednesday, August 25, 2021
I'm writing this post in scorching Saint Louis, where I am a visiting professor at Saint Louis University School of Law for the fall semester teaching workers' compensation and torts. It is always interesting to gain exposure to another state's workers' compensation law. And this is the first time I have ever taught these two subjects in the same semester. That, too, is an interesting exercise. It has been quite a while since I blogged, and I thought I would start out by introducing my forthcoming article in the San Diego Law Review: What COVID-19 Laid Bare: Adventures in Workers’ Compensation Causation. Here is the abstract:
This essay performs a close analysis of workers’ compensation coverage of COVID-19 and arrives at the conclusion that it should not be “impossible” to prove in a legal sense that an employee’s COVID-19 was caused by work. Scientific proof is not the same as legal proof: workers’ compensation law has never required that claims must be supported by irrefutable scientific proof of workplace causation. Yet repeatedly one heard this suggestion during public discussion on workers’ compensation coverage of employees.
Still, there is good evidence that even when workers’ compensation undisputedly covers work-related disease employers seldom pay benefits (and states do not compel them to do so). This is one reality that COVID laid bare: the workers’ compensation system rigidly resists paying occupational disease claims. The essay also explores a news account from Minnesota stating that nine hundred and thirty-five of nine hundred and thirty-five workers’ compensation COVID-19-related claims from meatpacking employees had not been paid as of February 2021. There was no shortage of other stories during the pandemic of mass denial of workers’ compensation claims in the meatpacking industry, a development having a disparate impact on communities of color, where more than half of all meatpacking employees are Latinx. These unpaid claim numbers suggest that something was “wrong” with causation analyses lower down in the administrative system.
Another truth COVID laid bare is that, aside from workers’ compensation, there is no nationwide short-term disability program in the United States. This leads to the conclusion that, if workers’ compensation insists upon super-strict versions of causation to cover claims, a different method of compensating short-term disability during pandemics or other “environmental” crises may become necessary. The conclusion seems almost inescapable because public health experts like Dr. Fauci are warning that we remain at risk for “new disease emergences” for the “foreseeable future.”
You can access the entire essay here.
I'll be doing a lot of workers' compensation writing and research here at SLU Law -- which is home to the Wefel Center for Employment Law and edits the ABA Journal of Labor & Employment Law. I'm feeling very much in my element.
Michael C. Duff
In a new, practical, article – falling into the category of risk management counseling – the authors identify and explain the federal statutory and regulatory authorities which govern hospital planning for emergency conditions, with a focus on the thorny issue of how such institutions are to address injury or death sustained by volunteer workers. Workers’ compensation and tort immunity are themes throughout. See John I. Winn, Seth Chatfield & Kevin H. McGovern, Medical Volunteers During Pandemics, Disasters, and Other Emergencies: Management Best Practices, 11 Seattle Journal of Technology, Environmental & Innovation Law 282 (2021), https://digitalcommons.law.seattleu.edu/sjteil/vol11/iss2/2/.
The authors devote a special part of the article to workers’ compensation coverage considerations. The authors – no surprise – identify a variety of state laws on workers’ compensation and volunteers that injects uncertainty into the coverage analysis. In this regard, some states can be identified as providing coverage for volunteers, while others cannot be so identified.
Meanwhile, a hospital’s attempt to require a “volunteer liability release” is fraught with similar uncertainty: “Consideration [of] the use of volunteer liability releases would require a detailed analysis of the host state’s statutory and case law.”
The authors review the National Incident Management System (NIMS), a project of FEMA, which, among other things, generally establishes that, in an emergency where workers are dispatched from a foreign state into the area of the emergency, the “sending state’s workers’ compensation provisions as well as tort liability statutes generally cover deployed personnel.” These and related plans have a shortcoming, however, in the lack of provisions for utilization of private sector volunteers.
The authors do identify a law, the Uniform Emergency Volunteer Health Practitioners Act, drafted “to address the complexity of workers’ compensation for cross-border volunteer healthcare practitioners,” but only eighteen states and D.C. have adopted its provisions.
The authors strongly advocate that hospitals maintain emergency plans that address comprehensively the issue of volunteers. “Preparation for worst-case scenarios,” they admonish, “involves consideration of all reasonable measures to mitigate the risk that responding volunteers may harm others … or injure themselves….”
The article concludes with a list of 18 volunteer-intensive hard recommendations/best practices for hospitals to consider in preparing or amending their emergency plans. One of these is inclusion in the hospital’s Emergency Volunteer Handbook of an explanation of “whether (or which) volunteers will be covered by workers’ compensation or commercial insurance.”
Sunday, August 8, 2021
Skilled University of Chicago Law Student Categorizes the States as to COVID, Recommends Reforms for the Next Pandemic
In a finely-wrought and sophisticated essay, a University of Chicago law student seeks to catalog the response of state workers’ compensation laws to the challenges of the COVID pandemic. He identifies four “novel categories” of laws, placing them “along a spectrum, from most likely to cover a meaningful number of workers to least likely.” These categories, which he admits are largely based on a “textualist reading” of laws (as opposed to empirical data), are likely coverage states, selective coverage states, uncertain coverage states, and unlikely coverage states.
The author correctly characterizes the current coverage situation as being fraught with uncertainty, which is neither advantageous for workers nor economically efficient.
He recommends, in any event, that workers’ compensation laws be amended so that, during the next pandemic, frontline workers – which he calls “public-facing essential employees” – have, through “coverage” presumptions, a more certain remedy.
See Dylan Moore, Striking a New Grand Bargain: Workers’ Compensation as a Pandemic Social Safety Net, ___ University of Chicago Legal Forum ___ (2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3834807.
Thursday, July 29, 2021
New Article Invokes Workers' Compensation as a Model for a Tort Reform that Would Emphasize More Timely Compensation of Victims
In a new article, a scholar advocates for modification of tort law so that the negligence-action goal of providing compensation to tort victims can be better realized. See Christopher J. Robinette, Harmonizing Wrongs and Compensation, 80 Maryland Law Review 343 (2021), https://digitalcommons.law.umaryland.edu/mlr/vol80/iss2/3/.
The author, who teaches at Widener University Commonwealth Law School, acknowledges that other goals of tort actions are (1) the societal desire for accident prevention (that is, the safety goal); and (2) vindication and basic justice for the victims of torts. Still, the author argues, “the majority of tort victims actually are motivated simply by compensation,” to wit, the simple need for “money to pay medical bills and replace lost wages.” In the author’s view, the current structure of tort law, in virtually all areas, does not allow a quick remedy for this basic need. In this regard, the complexity of tort law and its overwhelming uncertainty lead to delay and wasteful transaction costs (attorney’s fees and expenses) which impair the compensatory goal that underlies most tort victims’ desire to sue.
The author, as suggested by his title, desires to “harmonize wrongs and compensation.” In the end, he sets forth no explicit new plan, but instead asserts that mechanisms should be established to remove compensation-oriented cases from “wrongs-based tort law….” He argues that some mechanism of this sort would benefit both the plaintiffs and defendants in those compensation-oriented cases, as well as reserve the tort system for those interested in righting wrongs.
The author finds support for such a mechanism in the workers’ compensation reforms which unfolded at the beginning of the last century. He also finds support in the reforms which surrounded the burgeoning automobile accidents (the no-fault experiments which came in their early-twentieth century wake), and the widely-publicized funds which have been established in the aftermath of mass disasters. These include the September 11th Victim Compensation Fund; the BP Oil Spill Fund/Gulf Coast Claims Facility; and the GM Ignition Switch Fund.
This new article is valuable in providing quick, accessible sketches of all of these programs, reminding the reader of their genesis – and how they have worked in practice. The author observes that workers’ compensation has been the most pervasive and successful reform of tort law to bring compensation to a limited class of injury victims. (His brief history of the emergence of our field will be of interest to all.) Compensation for victims of automobile accidents, on the other hand, has experienced a rockier reform path. Yet, many jurisdictions still have some level of auto no-fault, with a policy of (1) seeking to compensate victims on some sort of no-fault basis; and (2) preventing most cases from ever making it to a jury trial. The mass-disaster funds, meanwhile, were quickly enacted with a goal of compensation and preventing, wherever possible, the delay and waste of litigation.
Of course, most mechanisms that focus on compensation, with their streamlined remedies, restrict the ability of the parties to receive an “individualized justice ruling.”
Still, the author insists, “most of tort law is not properly designed to meet the compensatory goals of a large number of claimants. What is needed is a way to bypass tort law in cases better suited for compensation, while leaving wrongs-adjudication in place as the default…. Designing such a bypass is challenging, but worth the effort. If successful, it would incorporate compensation into wrongs-based tort law…. Additionally, the search for a way to fairly compensate those claimants who are not seeking vindication may create common ground on tort reform. A simpler, cheaper procedure with decreased pain and suffering damages would be fairer than some current reforms, like caps on damages, yet potentially generate the savings desired by business interests.”
Wednesday, July 21, 2021
Pennsylvania (and Universal?) Medicare Set-Aside Development: In Open Meds/MSA Option C&R Approach, Claimant Held to his Promise of Future Cooperation
Parties under the Pennsylvania practice may compromise and release (C&R) any liability claimed to exist under the law. The statute (enacted in 1996) was, notably, patterned after the California Act provision. Currently, the majority of (though by no means all) disputes end, as in many states, in C&R.
With the federal government's demand for MSAs in cases where the worker has Medicare rights, one creative strategy is for the claimant to tender a release for disability benefits, accept a lump sum, and agree to cooperate with the employer's continuing attempts to secure an advantageous CMS-approved MSA. The employer typically reserves the right to either continue its liability for medical indefinitely or fund the MSA. As a WCJ, I have referred to this popular strategy as the Open Meds/MSA Option.
The employer's risk in such a situation has always been that the injured worker will not, at the future date, cooperate with securing CMS approval. In a July 2, 2021 case, that situation was on display.
In this regard, the Commonwealth Court (a powerful middle-level appeals court), reversing the Appeal Board, and restoring the WCJ’s order, held that a claimant was bound by his C&R promise to cooperate in the future with facilitating a CMS-approved MSA. Lehigh Specialty Melting, Inc. v. WCAB (Bosco), 569 C.D. 2020, filed July 3, 2021, 2021 WL 2934769 (en banc, unreported, Pa. Commw. 2021). (A link to the full text is below.)
A worker, Bosco, sustained acknowledged work injuries in 2011. Three years later, he and employer, Lehigh Specialty Melting, Inc., agreed to a $155,000.00 C&R. The C&R was for disability only, with the employer reserving the right to exercise its option of either indefinitely covering medical or seeking out a CMS-approved MSA. The WCJ approved the arrangement in his 2014 order.
A number of years passed, and medical marijuana became available; claimant began to utilize the substance for his chronic work-injury condition.
In 2018, employer secured CMS approval of a $44,913.00 MSA. Claimant advised employer of the medical marijuana use, and employer re-contacted CMS to determine if claimant’s use of the same would alter the MSA amount. CMS (no surprise) advised that it would not.
In any event, claimant refused to cooperate in executing documents to finalize the MSA, which consisted of a lump sum and monthly installments.
The employer then filed a recurrent C&R approval petition. Employer requested that the WCJ oblige the claimant to be bound by the original C&R. At hearings, claimant acknowledged that he knew a delay would occur between the original C&R approval and his later obligation to follow through on the employer’s MSA option.
The WCJ granted employer relief, indicating that if claimant – after an employer effort to receive a new MSA quote from CMS – did not execute the paperwork, employer was to disburse to him the value of the MSA. The WCJ had noted and found credible that claimant understood how the open medicals/MSA option was to work and that years might pass before the employer exercised the option.
The Appeal Board reversed, holding that, given the succeeding legalization of medical marijuana, no original “meeting of the minds” as to employer’s responsibility for medical necessarily could have occurred at the time of the 2014 C&R.
The court, however, restored the WCJ’s ruling and ratified the remedy noted above. The Board had committed error in its “no meeting of the minds” analysis. To the contrary, the bases for setting aside a C&R – or here, disregarding its provisions – are fraud, coercion, or mistake. And in this case, claimant had not shown any of these factors. In this regard, the court noted in particular that the intervening legalization of medical marijuana (a “change in the law”) did not reflect “mistake” sufficient to change the terms of the C&R.
In making its ruling, the court agreed with employer’s assertion that the Board’s standard “would open a Pandora’s box that could potentially unravel countless C&Rs based on the contention that there was no ‘meeting of the minds’ at the time the agreements were approved.”
Postscript: In the original C&R, the parties had marked the “no” box where the agency form inquires whether medical was being settled. The court was unmoved by claimant’s argument that this fact changed the critical analysis. In this regard, the original C&R was (as with all C&Rs) approved after an on-the-record hearing, and it was obvious that the parties were indeed then seeking to settle medical.
Sunday, July 11, 2021
UCLA public health professor Emily Abel has written a brief but wide-ranging social history of the phenomenon of fatigue. Abel, herself a breast cancer survivor who suffered from years of fatigue following chemotherapy, combines her sober historical analysis with aspects of memoir. This approach makes for compelling reading. See Emily K. Abel, Sick and Tired: An Intimate History of Fatigue (University of North Carolina Press. 196 pp. 2021).
And the book, treating an example of “contested illness,” will be of interest to members of the workers’ compensation community.
Fatigue itself is not reflective of a discrete injury or disease (as she says, “there are no diagnostic codes for fatigue”), but is a complaint often offered by patients (including injured workers) who are describing the aftermath of their injury and treatment. The most commonly-encountered example by this writer is the easy one: the worker who is medicating (or over-medicating) for pain and expresses an inability to return to work because of the dangers of driving while drowsy.
Abel briefly mentions this situation, but the fatigue upon which she focuses is the post-injury or post-medical treatment condition of extreme lethargy that impairs individuals from some or all of the normal activities of daily living. The leading currently-recognized malady is Chronic Fatigue Syndrome (CFS), and of special interest to Abel is the malaise which can often follow cancer treatment.
Abel demonstrates that, over the decades, complaints of fatigue have been looked upon with suspicion by a society which has long viewed “productivity [as] the only measure of human worth.” She analogizes this phenomenon to the intolerance of both the medical profession and society to sufferers of long-term chronic pain and other “contested illnesses,” like chronic Lyme Disease, that implicate long-term disability.
Abel identifies and critiques three themes that she detects in the socio-historical record of how fatigue has been treated. All of these, notably, touch on how lawyers and judges think about disability.
She first concentrates on what she calls the rejection by modern medicine and society of sufferers’ subjective accounts of exhaustion (she calls this “embodied knowledge”). Most doctors and systems (like disability systems) demand that objective signs of pathology must be evident before a condition can be legitimated. This thinking echoes, of course, the familiar IME doctor refrain that objective signs of injury must be detectable before complaints of pain can be credited.
She reviews, secondly – and throughout the book – society’s devaluation as unproductive, and hence burdensome, those who, because of chronic conditions, are unable to work. This societal view, which the author decries, is pervasive in our field, where the worker who refuses to return to modified duty is often cast as a burden on the employer, the insurance carrier, and the community at large.
Abel analyses, in her third and most compelling discussion, the “triumphal recovery narrative” which is so popular in both medicine and the disability insurance community. A dependable standby of workers’ compensation seminars is, indeed, the speaker who contrasts the disappointing long-term disability claimant with the much-more-seriously-injured worker who has recovered, shown “resilience,” and excelled. Injured workers are encouraged by such speakers to follow the example of Christopher Reeve, whose quadriplegia did not prevent him from continuing with a fulfilling and productive life.
Of course, the answer to this rhetoric, typically offered by motivational speakers, is that heroism is not, or should not be, the standard. As the author, reflecting on precisely this point, states, “physical imperfection is a condition of human life, rather than a cause for shame …, disability arises as much from social arrangements and cultural attitudes as from physical impairment, [and] … everyone cannot be expected to overcome whatever adversity strikes ….” She is correct: we all admire the strong-willed, the person of true grit, and the resilient. But on the other hand, not everyone is Superman.
The author’s historical review of how fatigue has been diagnosed by doctors and regarded by society over the last 150 years will educate and enlighten the disability professional. The book follows through, further, on its promise of intimacy. Abel, in this regard, affectingly recounts not only her struggle with breast cancer but her childhood and how the then-current scourge of polio affected her and her thinking about how one must respond to disease, surgical intervention and, finally, its exhausting aftermath.
Monday, March 15, 2021
Many in the workers’ compensation insurance industry have been trying to predict what costs COVID-19 will ultimately impose. One line of thought is that most claims will be of short duration, with those found compensable perhaps only lasting weeks, and with de minimis medical expense. Other claims analyzed in such projections, of course, are more costly occurrences. Those are the ones featuring death.
Insurance industry commentators, however, are now recognizing another potentially expensive type of claim, that is, those COVID cases that become chronic. The term for the condition is “Long COVID.” The victims, meanwhile, have been called “long haulers.”
In a new article, which I highly recommend, the author interviews a number of Long COVID patients with an eye towards determining their typical symptoms, determining how they are treated by the medical field and, pertinently for our purposes, how they are to survive from an economic point of view. Alexander Zaitchik, The Forever Disease: How COVID-19 Became a Chronic Condition, The New Republic, p.32 (March 2021), https://newrepublic.com/article/161102/covid-19-long-haulers-chronic-disease-health-care.
All of this is of interest to the workers’ compensation professional because it is chronic cases that can be the most challenging for the system. And, notably, the author here compares Long COVID to a long-recognized condition we encounter in workers’ compensation, “chronic fatigue syndrome” (CFS). Here the author refers to CFS in its full modern articulation, or Myalgic Encephalomyelitis/Chronic Fatigue Syndrome, or ME/CFS. ME/CFS is like another sometimes-chronic condition, Lyme Disease, encountered in workers’ compensation.
Both CE/CFS and chronic Lyme said to be are diagnoses with “no clear markers.” In this article, the author assigns Long COVID to this this group of ailments: “Those who live with ME/CFS know full well the consequences of living in a medical no-man’s land. Like Long COVID, ME/CFS usually has no clear biological markers. There are no on-label treatments. Patients are often undiagnosed, misdiagnosed, or altogether dismissed by doctors.”
What are the symptoms of Long COVID? The author identifies them as “headaches, nerve pain, cognitive dysfunction, hair loss, constipation, and extreme weight loss.” A key symptom, however, is indeed like CFS – the same persistent fatigue that afflicted the COVID-19 victim in the first place.
The author reports that researchers have long known that virus sufferers do not all have the same illness experience. Some, indeed, develop a chronic condition. The author remarks, “research on post-viral illnesses suggest that as many as half or more of those who survive the virus could suffer one or more symptoms for months or years. Whatever the final number, the pandemic’s mortality rate will continue to be dwarfed by the long-hauler population.” This fact leads to an issue pertinent to our field; a key issue as the population of chronic sufferers “is how to support and care for a new cohort of chronically ill Americans, possibly numbering in the millions.”
The remedy of workers’ compensation is not mentioned in the article, and none of the individuals interviewed alleges that they contracted the virus from a work exposure. Thus, as one might expect, Social Security Disability is identified as the obvious remedy for the true long haulers. “Most,” the author states, “will likely turn to their earned Social Security Disability insurance benefits….” But will this really happen? The author reports that, as of 2017, SSA reported that only about 13,000 individuals received this key benefit for the similar diagnosis of ME/CFS.
Of course, the author points out that SSD is an imperfect remedy for most, given the waiting period for both benefits and the accompanying Medicare card. On this point, Social Security expert Nancy Altman told the author, “the mounting number of long haulers makes eliminating both waiting periods even more important.” She adds, “in the meantime, some people found medically eligible may end up on SSI [Supplemental Security Income] and Medicaid, but that requires having virtually no income at all.”
In a timely article, a father and son pair of Philadelphia-area authors theorize about the tort suits that might be filed by victims (mostly workers are hypothesized) of the aggressive behavior of that supremely uncivil and churlish breed of our fellow citizens: the willful anti-maskers. See Andrew D. Cotlar & Joshua H. Cotlar, Liability Unmasked: Pennsylvania’s Tort Law Applied to COVID Anti-Maskers, Pennsylvania Bar Association Quarterly (January 2021).
The authors first cite examples of instances (in Pennsylvania and throughout the U.S.) where workers in the midst of their labor are assaulted or threatened by anti-maskers. Most of such acts are actually criminal in nature, but the authors observe that in many cases, the police are unable or unwilling to enforce the law. Here, the authors posit, tort law can have a role: “This article argues that … tort law has traditionally served the function of expressing social norms and providing guidance, and incentives, for good behavior where the police power of the state may fail to be applied, and that liability for refusing to wear a mask during a health pandemic serves just this purpose.”
When a worker is physically assaulted and sustains injury by an anti-masker, this model sounds ideal. In cases where the anti-masker’s aggression is deliberate exhalation on the worker, however, the same causation challenge that impairs the workers’ compensation remedy haunts a cognizable tort suit: “The greatest difficulty from a plaintiff’s perspective will likely be establishing that the plaintiff’s harms were caused by a particular encounter with a particular defendant, as distinguished from generalized conditions of the pandemic likely to cause similar effects.”
Still, the authors conclude, “A creative and persistent litigator may find this a challenge but conversely may also be able to develop the necessary basis for liability through proper eye-witness testimony, video surveillance, contact tracing and medical, psychological or economic expert testimony.”
Thursday, March 11, 2021
Larson Treatise "Emerging Issues Analysis" (2020): An Anthology Delivering Complete Immersion in the Field
The editor of the Larson treatise, North Carolina lawyer Thomas Robinson, has again published his anthology, Workers’ Compensation Emerging Issues Analysis (LexisNexis/Matthew Bender. 2020. 233 pp.).
This book, though expensive, continues to provide the reader with full immersion in both the issues of the day in our field, and in those challenging our intellects for decades. No completely new writing by Robinson (I don’t believe) is published in the book. Instead, the Emerging Issues Analysis is an anthology of the author’s LexisNexis commentaries over the prior year, along with select essays by a number of colleagues. Completely new material, on the other hand, appears from the author’s collaborators. These are defense lawyers from the several states (including California) who belong to the National Workers’ Compensation Defense Network (NWCDN).
Though the book, published now for several years, is a valuable, completely immersive read, it nevertheless now bears (unlike before) a defense orientation. A reading is not quite the defense-fest experience one has at the Orlando WCI gala or similar events. Yet, as the various defense lawyers lead discussions for their respective states on the issue of COVID, virtually all line up with the supposed definitive analysis for why COVID-19 could not possibly be either an accident or occupational disease – only on rare occasion acknowledging the injured worker’s (or his widow’s) perspective.
The book features a subtitle, COVID-19 in the Workplace. And, notably, the first section of the book is comprised of twenty-one essays addressing workers’ compensation and COVID-19. The treatment is comprehensive, with Robinson and his collaborators treating such items as basic compensability; the trend of states enacting causation presumptions; and the compensability of injuries sustained by telecommuters.
Robinson has the most articulate voice here in terms of policy. He identifies cases of certain states where infectious diseases have, historically, been compensated, even without an occupational disease mechanism being employed. He identifies, for example, the famous Pennsylvania case City of New Castle v. Sallie (1988), where an unfortunate office worker died from bacterial blood poisoning after a good-will kiss (at an on-premises maternity leave party) he gave to an infected but latent coworker.
Robinson, however, does not perceive workers’ compensation as a particularly good vehicle for providing coverage and potential compensation for an infectious disease like COVID. This is so, as most can intuit, because COVID is just that, an infectious disease, and one that can be contracted virtually anywhere. Of course, it is indeed non-work social settings, like bars and restaurants, church and choir practice, etc., that seem, for most, the most risky environments.
Robinson is correct in this regard. However, it is submitted that no reason exists, in the present day, to reject the idea that those whose work put them at actual or increased risk of infectious disease should be barred from workers’ compensation. This is certainly so when medical causation (however much a challenge) demonstrates work-related causation. Further, for better or worse, American society has no 24/7 system of disability and medical insurance, so it is hardly unreasonable for those who believe they have been infected at (or have had their loved ones killed by) work to pursue workers’ compensation benefits. This is certainly so when they have no other insurance providing for disability and medical coverage.
Robinson does not think much of governors taking executive action to create COVID presumptions. Indeed, one of his essays is entitled, “State Governors Have Pens, Who Needs Legislatures?” Another of his critiques echoes the same he has voiced about the popular PTSD presumptions: why should certain workers like first responders or front-line workers (those who labor in grocery stores and hospitals), enjoy presumptions, when the general population does not?
Another essay by Robinson sets forth the welcome reminder that presumptions have, over the century, been common phenomena of workers’ compensation laws. On the other hand, it is undeniable that the promotion and enactment of presumptions in the present day has become a favorite of legislatures. The first-responder cancer and PTSD presumption mechanisms of the last decade or so are obvious examples.
Among Robinson’s additional essays of interest is his reprint of The AMA is on Another Collision Course with Protz. Robinson published this wise essay in August 2020; in it, he explains how the AMA has suspended its historical pattern of publishing occasional new editions of the AMA Guides. He explains that the AMA has a new plan: “Not to create a Seventh Edition, but to continuously update the Guides to reflect the current science and best practice of medicine.” The new version will be online, and no new hard-copy text will apparently be published.
Here, in summary, is Robinson’s concern over the proposal: “The AMA’s proposed method of ‘updating’ the Sixth Edition on a rolling basis flies in the face of Pennsylvania’s Protz II decision….” (Citing the astonishing Pennsylvania case, Protz v. WCAB (Derry Area School District), 161 A.3d 827 (Pa. 2017), which forbade the "most recent edition" formulation, and struck the Guides from the law.) Robinson takes for granted that “to the extent that the AMA makes changes to the Sixth Edition, on a rolling basis, or otherwise, those changes would not be effective in Pennsylvania.”
This observation is surely correct.
As foreshadowed at the outset, Part 2 of the book is prepared, in part, by Robinson’s collaborators from the NWCDN. Robinson and collaborators proceed through the several states and identify jurisdictional trends and cases. Virtually all of the contributors take a stab at analyzing how COVID might or might not be compensable under the accident and occupational disease provisions of their laws. As noted at the outset, a common (though not unanimous) refrain is that COVID clearly will not be compensated.
All of this material is must-reading for the true national expert. Still, the most intriguing and helpful material is constituted by the Part 2 summaries of the most important cases decided the last year in each of the respective states. It is here, simply by analogy, that the practicing attorney, judge, and true student of the field will learn the most.
Tuesday, February 23, 2021
A Disguised Vaccination Mandate: Submit to Vaccination or Forego the Workers’ Compensation Causation Presumption
A workers’ compensation bill filed in the Illinois House on February 19 provides, “no compensation shall be awarded to a claimant for death or disability arising out of an exposure to COVID-19 if the employee has refused a vaccination.” 820 ILCS 305/7.5 new
This is a very sticky wicket. If the State may compel an individual to receive a vaccine, despite 4th amendment considerations, then perhaps the provision is no big deal (even though it leaves a bad taste in my mouth). But if the State cannot compel receipt of the vaccine then I am at a loss to say how the provision does not amount to a prohibited conditioned benefit—a benefit conditioned on foregoing a constitutional right. See Perry v. Sinderman, 408 U.S. 593, 597 (1972); Sherbert v. Verner, 374 U.S. 398, 404 (1963).
Indeed I think workers’ compensation benefits implicate this principle even more strongly than the cases I just cited, which essentially stood for the principle that, even if creation of a right by Government (such as, say, a welfare benefit) is completely discretionary, the benefit may not be freighted with unconstitutional conditions: “you get this benefit only if you agree never to belong to any faith other than Christianity.” But in the case of workers’ compensation, the quid pro quo for a tort right, I resist the notion that the “benefit” received is completely discretionary. It is not a welfare benefit, it is a substitute for a historically conferred tort remedy of ancient lineage. So the state can take that benefit from me unless I assent to an unconstitutional invasion of my body?
As I say, if a mandatory vaccination is not an unconstitutional invasion of my body then my concern fades into the mist. In any event, it is a very unsavory way for the State to sneak into the law a vaccination mandate. If it is to be done, do it in the open.
Michael C. Duff
Saturday, February 20, 2021
Today, I accidentally bumped into a recent Covid-related bill offered in the Arkansas House within the last couple of weeks that looked at first blush employee-friendly. It would exempt Covid-19 from the otherwise categorical exclusion of “ordinary diseases of life,” deeming Covid an occupational disease that may be proven by “a preponderance of the evidence.” (Section 3). From the employee’s perspective, so far, so good. However, the bill also states under Section 2(a)(3):
Requiring an employee to perform work when the employer has knowledge that, within the normal course and scope of the employee’s job performance, exposure to coronavirus 2019 (COVID-19) or severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) or any of its mutations is possible, likely, or certain is not intentional conduct that would remove the employer from the protections of this chapter.(emphases supplied)
This bill should be considered in the context of Arkansas Governor Asa Hutchinson’s prior Executive Order broadly granting business immunity for its negligent Covid-19-related conduct, with the caveat: “Immunity does not apply to willful, reckless or intentional misconduct.” (It is unclear from the text if the standard is meant to be the same as “gross negligence,” the caveat often mentioned in state immunity bills emerging elsewhere in the country).
Hutchinson’s decree, of course, immediately knocked Gig workers (deemed independent contractors and not employees) out of the box because in connection with Covid-19 harms they have no access to workers’ compensation law (as non-employees) and now have no access to remedies for negligently caused Covid harms. If tort law at the dawn of workers’ compensation had only allowed employees remedies for intentional torts there would have been no grand bargain. Why would employers need to bargain for reduced liability through workers’ compensation if they almost never lost cases? Make no mistake, the immunity standards are designed so that employers could almost never lose a tort claim (and workers' contingency lawyers would almost never take cases).
But the workers’ compensation bill under discussion is more stealthily harmful to regular employees. Where a state allows an exception to exclusivity for intentional torts, an employee could at least attempt to meet the higher tort standard (that an employer “knew to a substantial certainty” that an injury would occur, or something of the kind), especially in connection with egregious cases. Under this bill, even if the employer knew with certainty that it was requiring an employee to become exposed to Covid-19 (in other words, that intentional tort was nearly a foregone conclusion if causation were established), the employee’s remedy would be exclusively limited to workers’ compensation. All employee injury claims would be kept firmly in the workers’ compensation system. Civil court judges could quickly dismiss employee-filed tort claims on jurisdictional grounds.
Yet, the sweeping of Covid-19 claims into workers’ compensation is not accompanied by a causation presumption. A cynic might say this is therefore where claims will go to die (though I think the unprovability of Covid-19 under the traditional “arising out of” element has been vastly overstated). But assuming that a state system is acting as if Covid-19 cannot be proven by conventional “arising out of” means, this mechanism sweeping in claims is potentially a kind of “empty preemption”: just because workers’ compensation “covers” a claim does not mean the claimant will receive an award, meaning the employee could be left with no remedy if exclusivity applies blindly to all “covered” injuries. See Larson’s treatise, § 100.05. (Emily Spieler and John Burton have termed this phenomenon “dual denial” – See Spieler & Burton, “The Lack of Correspondence Between Work-Related Disability and Receipt of Workers’ Compensation Benefits” at 496).
You might say, “this is no big deal because the person who cannot win a workers’ compensation claim (without the causation presumption) also could not win a tort claim.” The rejoinder to that argument is that intentional tort actions remain universally available under Covid-19 state immunity laws, have higher damage award and settlement potential, and would be governed by tort causation principles that can be unpredictable in multiple cause contexts—e.g., the claim that Covid-19 was caused both by work-related and non-work-related factors. (Arkansas has apparently adopted the “substantial factor” test in tortious disease claims, Green v. Alpharma, 284 S.W.3d 29 (Ark. 2008), a test holding that a plaintiff may recover against a defendant even where there are other causes of harm, if the defendant’s conduct was a “substantial factor” in producing the harm, notwithstanding the existence of the other factors).
Ultimately, I think this contemplated jiggering of the Arkansas workers’ compensation statute may presage broader legislative realization that dual denial may be heading for constitutional challenge. Thus, the maneuver is to bring claims within workers’ compensation (by not designating Covid-19 an “ordinary disease of life”), so that in theory remedies to employees have not been completely cut off, while providing no causation relief in the form of a presumption for claimants.
Michael C. Duff
Monday, February 8, 2021
Back on January 22 Professor Burton and I presented at a webinar conducted by the Workers' Injury Law and Advocacy Group (WILG) and titled "COVID as an Occupational Disease: How Do Various States Handle these Claims?" In this report, published by WILG, the edited papers from the webinar have been published. Most of the report consists of Prof. Burton's substantial paper. I contributed a shorter paper on the legal mechanics of how the presumptions operate in an evidentiary sense, which gave me an opportunity to write the delightful phrase, "bursting bubble presumption."
One important difference between the views of Professor Burton and my own is that, while we each support the idea of causation presumptions, he would automatically limit presumptions to a small universe of first responders and narrowly defined (perhaps by CDC categories) "essential workers." I, on the other hand, am much more desirous of a robust, transparent, democratic debate on just who qualifies as an essential worker. It is now very clear that Covid 19 has had a disparate impact on communities of color; and the elephant in the room is that limiting Covid causation presumptions to "first responders" may have the impact of privileging relatively high paid, white, male workers. I do not say that such limitations re definitively wrong. I merely think the matter of eligibility should be transparently and robustly debated and the premise thereby subjected to public scrutiny.
Professor Burton and I reach some common ground (and perhaps compromise) by way of his very interesting proposal that presumptions could be triggered by reference to OSHA-cited workplaces: causation presumptions could be applied to workplaces known to be violating OSHA Covid-related safety standards. A mechanism of that type may be preferable to presumption structures that ex ante (even if unintentionally) operate to discriminate against low wage workers who are predominantly of color and women. In some ways it avoids the question of who is essential targets coverage to where it is most needed.
Michael C. Duff
Sunday, January 31, 2021
As I commence another semester teaching workers’ compensation law, blissfully if artificially abstracted from Covid contexts, I find myself befuddled by a fundamental and, I naïvely had imagined, simple question: why did state workers’ compensation statutes ever include an accident requirement?
As workers’ compensation specialists know, the standard workers’ compensation coverage formula (in most but not all states) is something like, “incapacity for work is covered if resulting from a personal injury by accident arising out of and in the course of employment.” Many insiders understand that functionally the formula has operated historically to exclude certain categories of arguably work-related injuries—notably cumulative and repetitive injuries, and disease. Often, courts will dramatically remind readers that workers’ compensation was never meant to be “general health insurance.” Yet states that have foregone the accident requirement altogether—e.g, Massachusetts, Maine, Wyoming—do not somehow reject workplace causal connection as a requirement for coverage, so the “general health insurance” quip is somewhat hyperbolic. Under black-letter workers’ compensation law an “accident” is an event that occurs “unexpectedly” at a “definite time” (or something of the like). Where the accident concept is applicable, the law can (and does) complicate matters by (depending on the state) asking whether by “unexpected” one means that the cause of the injury was unexpected, or that the result/disability was unexpected. Courts also ask whether by “definite time” one means that the injury occurred at a definite time or that the out-of-work disability occurred at a definite time. The questions are prickly, and states’ laws on these conceptual rivulets are often inconsistent. I will be pushing my students on the “stickiness” of this doctrine in the upcoming week.
But I have a different question that I am thinking about. The “injury by accident” language came to the American statutes from the original English workers’ compensation statutes of 1897 and 1906. I am beginning to think the purpose of the “accident” language was not to limit coverage of workers’ compensation claims but to provide notice of expanded employer liability, to make clear that even though the injury was “merely” an accident—and therefore not actionable in negligence—the worker nevertheless had a "claim" (an unusual proposition in 1897). In the language of the old 1906 English statute at Section 1:
If in any employment to which this Act applies personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as herein-after mentioned, be liable to pay compensation in accordance with the First Schedule to this Act.
But the exclusion of nonaccidental injury takes on quite a different tenor when one considers that it is being juxtaposed to negligence. In the same Section the statute reads:
When the injury was caused by the personal negligence or wilful act of the employer, or of some person for whose act or default the employer is responsible, nothing in this Act shall affect any civil liability of the employer, but in that case the workman may, at his option, either claim compensation under this Act, or take the same proceedings as were open to him before the commencement of this Act; but the employer shall not be liable to pay compensation for injury to a workman by accident arising out of and in the course of the employment both independently of and also under this Act, and shall not be liable to any proceedings independently of this Act, except in case of such personal negligence or wilful act as aforesaid . . (emphases supplied)
So the prototypical English Act contemplated that a worker injured by accident had a workers’ compensation claim. But it also went on to say that non-accidentally injured workers (or their statutory successors, in the case of death) could elect to pursue their employers in negligence (“civil liability”). The employee could not pursue both courses of legal action, and exclusivity applied except in the case of the employer’s “personal negligence” or “wilful act.” Read in this way, the term “accident” was simply acting as a foil to “negligence.” It had no independent significance as an exclusionary or “cost controlling” device.
It is true enough that the original architects of the language probably only had on their minds coverage of single-episode, traumatic workplace injuries. But it is difficult to draw from this fact that they meant not to cover, e.g., cumulative injuries. And precisely because cumulative injuries were not being considered, it is difficult to imagine that the “accident” element was originally meant to exclude them (or anything like them).
Maybe this does have a Covid connection. To the extent that Covid claims are deemed not to be covered by workers’ compensation (as occupational diseases or otherwise) because contraction of Covid is not an “accident” (leaving causation questions to one side), it is questionable that non-coverage is consistent with “what workers’ compensation was originally meant to be." The accident requirement (functionally an exclusion) may simply be a reflexive carryover from the original statute that we have not critically thought about – at least not critically enough. Who will be the last to die for an historical accident?
Michael C. Duff
Thursday, January 28, 2021
Monday, January 25, 2021
Letter to Congress From Labor and Activist Groups on Gig Economy -- Workers' Compensation Implications
To state the obvious, continued contraction of employee status in the national economy diminishes in importance all domains of employment law. Why would anyone need workers' compensation if we did not have statutory employees? The glib response to this concern is that the Gig economy is not nearly so expansive as "alarmists" contend. But if you take a minute to see what a nightmare data collection on "contingent" employees has been, you would be forgiven for doubting the doubters. In a nutshell, workers responding to BLS survey questions don't even know what they're being asked. And just as has been the case over the last year in the context of pandemic related unemployment estimates, official numbers have obscured the scope of the contingent workplace in the United States. Back in 2015, for example, the Government Accounting Office estimated the contingent workforce at a much higher figure (than those suggested by BLS figures) of 35.3 percent of employed workers in 2006 and 40.4 percent in 2010. Does anyone think the Gig economy has become smaller since 2010? Then of course there is the very fact that during the pandemic it was deemed necessary to create an entire unemployment fund substantial dedicated to compensating the unemployment claims of Gig workers -- you know, the part of the economy that is claimed to be smaller than what our eyes and experiences reveal anecdotally.
Well, people "on the ground with workers" know what is happening and I'll devote the remainder of this post to a letter written by some such folks. They are writing predominantly from a federal law perspective but the points apply with equal force to workers excluded from state workers' compensation laws. You can read it below the fold:
Thursday, December 24, 2020
In recent posts I have noted that disability and medical costs arising from adverse reactions to Covid vaccinations are likely to be covered either by workers’ compensation (when the employer requires vaccination as a condition of employment) or perhaps by the federal Countermeasures Injury Compensation Program (CICP). I noted that workers’ compensation causation analysis might change if state or federal government were to require inoculation. Frankly, I had not considered the situation discussed in this morning’s Daily Labor Report (behind a paywall): “State lawmakers are floating proposals aimed at preventing government agencies, employers, or schools from forcing people to get the Covid-19 vaccine, although none of the bills has succeeded yet.” While I cannot imagine that any such proposal would become law—because I think most state governments, wherever located, would not want to bind their hands aggressively on emergency public health powers—it does suggest that there may be a good deal of reluctance by states to enact an employment vaccine mandate. The nascent backlash at least suggests that employers may have to unilaterally require vaccinations.
If employers require vaccines, the case for workers’ compensation coverage of adverse effects is strengthened, for reasons I have mentioned. And I want to qualify a circulating mantra that was again repeated in the same Bloomberg article:
Employers generally have the authority to require workers to get vaccinations and terminate them if they refuse, as long as the employers satisfy federal requirements related to accommodating religious objections or medical conditions that might qualify as disabilities. The U.S. Equal Employment Opportunity Commission updated its guidance Wednesday on employers and vaccine mandates in light of the newly approved Covid-19 vaccine.
This essentially says that the EEOC will not consider such a termination for vaccine noncompliance to violate one of the laws that it oversees, but it overlooks an important caveat: the National Labor Relations Act (administered by the National Labor Relations Board, not the EEOC). Under the NLRA, if employees concertedly refuse to work (in other words, more than one employee at the same workplace refuses to work), under a good faith belief that their health is in jeopardy, the work stoppage is protected under black letter federal labor law endorsed by the U.S. Supreme Court. The right runs to employees, not unions: all non-union employees have the right to concertedly engage in work stoppages protesting their working conditions (a fact that sometimes surprises people, though it has been true under the NLRA for decades). And, also contrary to popular belief (and contrary even to what many lawyers believe), safety-related work stoppages by non-union employees need not be “reasonable,” they need only be undertaken in “good faith.” The employees must really believe work will jeopardize their safety and, while the employees can be “replaced” during the work stoppage they cannot lawfully be “terminated.” I have written an article (forthcoming in the Saint Louis University Law Journal) discussing the American law of work stoppages in 21st century workplaces that reviews these principles (though things get tricky in the Gig economy).
How ironic it would be if red state legislators (historically in visceral opposition to federal labor law) were to see the situational utility federal labor law presented them. My guess is that they will not want to let that genie out of the bottle. It is another interesting example of the often subtle interplay between workers’ compensation, workplace safety, and labor law. In some ways, this has always been true. After all, the first American workers’ compensation statutes essentially copied the British Acts of 1897 and 1906. Those statutes resulted from pressure applied by British labor unions increasingly able to threaten use of the strike weapon in reaction to declining safety in 19th century industrial workplaces.
Michael C. Duff
Tuesday, December 22, 2020
The Bloomberg Daily Labor Report says, here behind a paywall, that yesterday “the U.S. Labor Department sent to the White House for review a high-profile final rule to ease employers’ use of independent contractors, continuing the Trump administration’s deregulatory push in the final weeks before the presidency changes hands.” The rule relates to classification of employees under the Fair Labor Standards Act.
Under current law, the Fair Labor Standards Act uses an Economic Realities Test to distinguish between employees and independent contractors that turns on 7 factors:
- The extent to which the services rendered are an integral part of the principal’s business.
- The permanency of the relationship.
- The amount of the alleged contractor's investment in facilities and equipment.
- The nature and degree of control by the principal.
- The alleged contractor’s opportunities for profit and loss.
- The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor.
- The degree of independent business organization and operation.
The Department of Labor has hustled forward the new midnight rule, which purports to clarify the “economic realities” test by using a five-factor test emphasizing two “core factors” that should be afforded greatest weight. The two core factors are:
- The nature and degree of the worker’s control over the work; and
- The worker’s opportunity for profit or loss.
These factors, according to the DOL, are “highly probative” of the inquiry of economic dependence because the ability to control one’s work and earn profits or risk losses are at the center of what it means to be an “entrepreneurial independent contractor.” If these factors both point toward a classification that the employee is an independent contractor, the DOL’s rule takes the position that that classification is likely accurate.
The other three non-core factors are:
- The amount of skill required to perform the work;
- The degree of permanence of the working relationship between individual and the potential employer; and
- The importance of the services rendered to the company’s business.
The soon-to-be new test seems highly litigable to me. It seems to impose primary and secondary analytical factors. But it is easy to predict that in many (most?) Gig economy-context cases a true control analysis will point in the direction of employee-status (which is why the Gig economy hates the control-focused Restatement Second of Agency test); and an (on paper) opportunity for profit or loss may point in the direction of independent contractor-status. That will open up analysis under the secondary, non-core factors, and we will be left with a 5-factor test versus the old 7-factor test. (I leave it to the reader to take an impressionistic look at the two clusters of factors). Obviously, the departing Trump-ites must believe that on balance more workers will be found independent contractors under the new test. Maybe. But I do not see how it will result in summary judgment dismissals. There are enough factors floating around that litigation over the new test will probably feel typical, even assuming the test hangs around for longer than 8 or 9 months, which I think improbable. In any event, state law employment tests such as those utilized by workers’ compensation may be influenced by but are never subject to the federal tests. Uber and Lyft have a long, long way to go on the road to their goal of exploding the whole idea of “employment.”
Michael C. Duff
Monday, December 21, 2020
The (woefully inadequate) $900 billion Covid relief bill will not nationalize wrongdoer liability immunity. (Negligence law imposes liability on an actor for causing injury to another by being unreasonably risky as to the other’s safety—the actor is a wrongdoer not a victim). It is hard to know what counts as a “victory” within the din occasioned by the current maelstrom. But I suppose avoidance of the annihilation of liability for wrongful conduct counts for something.
Of course, state-level immunity is still an issue. Eventually this issue may raise grave 14th amendment issues as workers in the Gig economy (in particular) are left without remedy for wrongful injury. But one day at a time. Hopefully, the argument over federal usurpation of state law remedies is over for the foreseeable future. In that regard, the May 2020 letter jointly authored by the Consumer Federation of America, Consumer Reports, National Association of Consumer Advocates, Public Citizen, and U.S. PIRG remains as valid as ever.
Michael C. Duff