Friday, May 22, 2020

Free to Be Negligent?

Originally published on Legal Planet, By Daniel Farber. Reprinted with permission.

Proposed Tort Liability Protection for Businesses

Sen. Mitch McConnell is demanding that any future coronavirus relief law provide a litigation shield for businesses, and other conservative/business interests have made similar proposals.

So far, the supporters of these proposals have engaged in some dramatic handwaving but haven’t begun to make a reasoned argument in support of a litigation shield.

In this post, I’m going to limit myself to negligence suits against businesses. Basically, these lawsuits claim the plaintiff got the virus due to the failure of a business to take reasonable safety precautions.

Even without a business shield, these are not going to be easy cases to win. Plaintiffs will have to show that they were exposed to the virus due to the defendant’s business operation, that better precautions would have prevented the exposure, and that they weren’t exposed elsewhere.

Tort lawyers may be reluctant to take on such claims except in the unusual cases where there was no other significant exposure to the virus. In addition, the plaintiff will have to show that the business failed to take reasonable precautions, which won’t be easy in many cases. Even if they prove all that, the damage award will be lowered if the plaintiffs failed to take reasonable precautions to protect themselves. A lawsuit will have to jump all these hurdles. The question is whether businesses need additional protection beyond that already provided by the ordinary rules of negligence law.

Proposed Limits on Litigation

I’ve collected some of the specific proposals. They differ in details but there are some common threads.

Chamber of Commerce
The Chamber of Commerce is the #1 representative of business interests in Washington, D.C. Here’s a description of the Chamber’s views on April 13, 2020. They were calling for the following:

  1. “[I]n the negligence space, providing a safe harbor for companies following CDC or state/local health department guidance could be helpful so long as the companies’ actions do not amount to gross negligence, recklessness, or willful misconduct.”
  2. “Procedural reforms such as channeling certain claims into federal court rather than allowing them to remain in various state courts could be helpful.”

National Federal of Independent Businesses (NFIB)
NFIB’s core proposal is that “Businesses should be protected from liability to customers and other third-parties unless those customers or parties prove the business knowingly failed to develop and implement a reasonable plan for reducing the risk of exposure to COVID-19 and that failure caused the injury.” The paragraph setting forth this proposal makes it clear that this liability protection would apply even if a business was not fully in compliance with federal or state health rules.
NFIB also proposes some subsidiary reforms:

  1. Worker’s compensation would be the exclusive remedy for employees (apparently regardless of whether they’re injured by the employer or by third-parties.)
  2. Liability would only cover people whose illnesses required hospitalizations.
  3. Lawyers who bring frivolous actions should be liable for the attorneys’ fees and other costs of the lawsuit to the business.

Heritage Foundation
The Heritage Foundation has a multi-part proposal:

  1. [D]ismissal of claims based on negligent implementation of pandemic mitigation or response measures.
  2. Businesses could obtain this protection in two ways: (a) by having their safety plans approved by a federal agency, or (b) by demonstrating to a judge as soon as they are sued that they are complying with “regulations, best practices, or guidance issued by federal or state health officials.”
  3. A plaintiff could overcome the shield by showing that the agency committed fraud in obtaining federal approval or willful misconduct in implementing its safety plan.
  4. Lawsuits against businesses could only be brought in federal courts.

Evaluating the Proposals

Underlying assumptions

Before turning to the specifics of the proposals, I should note that there are two key assumptions underlying them. None of the proposals attempts to defend those assumptions.

The first assumption is that frivolous tort claims are going to be a serious problem. I haven’t seen any evidence to support this, either based on past experience or on lawsuits brought to date. Despite all the talk about unscrupulous plaintiffs’ lawyers, we don’t know how much of a problem they are.

The second assumption is that federal intervention is required. Tort law is a matter of state concern. If personal injury lawsuits are going to be an unfair burden on businesses and prevent the economy from reviving, why can’t we trust state legislatures to respond? A related assumption seems to be that state courts can’t be trusted to handle these cases. Again, there’s no evidence to support this assumption.  Whatever happened to states’ rights?

Other gaps.

Beyond the failure to defend these assumptions, there are other serious gaps in the argument for these proposals:

Overlooked benefits of liability. 

The proposals conspicuously ignore any possible justifications for imposing liability. In general, negligence liability has two justifications. First, it provides an incentive to exercise reasonable care. It’s not implausible to assume that businesses will be more likely to take reasonable care if they face the threat of liability for carelessness. Second, negligence liability is based on the moral sense that someone who is at fault should compensate the victims of their carelessness. The reform proposals would undermine both goals to the extent that they protect businesses that actually failed to exercise reasonable care.

Failure to consider alternatives. If in fact unfounded lawsuits are an undue burden on businesses, there are alternative solutions. One would be some kind of federal support for business liability insurance, such as a tax credit for liability premiums. Another alternative would be to cap damages. A different option would be to add special procedural requirements for these lawsuits in order to allow frivolous claims to be weeded out quickly and inexpensively.

Workability issues. Shunting these lawsuits to federal court seems unworkable, given the limited number of federal judges and their already overloaded dockets. The proposal to have the federal government certify safety plans assumes that federal agencies have spare resources to devote to this task. Moreover, because many federal and state safety requirements are vague, it may be difficult for businesses to establish that they were in compliance. (Moreover, at this writing, the White House seems unwilling to allow CDC to issue reopening guidelines.) The requirement that plaintiffs show gross negligence may or may not be a deterrent to “unscrupulous trial lawyers.”

In short, at this point the supporters of these proposals have failed to show that negligence law is in need of a federal cure, that the cure will not be worse than the feared “epidemic” of unfounded litigation, or that the cure will work.

May 22, 2020 | Permalink | Comments (0)

Wednesday, May 20, 2020

Another Public Nuisance Covid Suit: Why is the McDonald’s Case Different?

A recent interesting lawsuit filed against McDonald’s, in Cook County, Illinois, suffers from few of the deficiencies that I have identified in prior postings, see here, and here. The named employee-plaintiffs allege “negligence” in what might look at first blush like a drop-dead workers’ compensation case. This time, however, there is a wrinkle: the negligence action is pursued against both franchisor-McDonalds (McDonald’s USA) and certain of McDonald’s franchise restaurants (McDonald’s Restaurant of Illinois, Inc., Lexi Management LLC, and DAK4, LLC). One may be the employer (subject to workers’ compensation liability), and the others may not (and therefore be liable in tort). Because you cannot know in advance how the question will come out, you allege negligence with respect to each defendant). This is perfectly sensible.

It will be politically difficult for McDonald USA to argue that it is a joint employer with its franchisees (and therefore protected by exclusivity) because it has been making the opposite argument at the National Labor Relations Board for years. It may be that under Illinois law McDonald’s will be able to walk this tightrope. After all, non-employers may be employers under different statutes in the same way that workers (bewilderingly) may be an employee or not depending on the definition embedded in a particular statute. But leaving the merits of the tort allegations to one side, I doubt McDonald USA’s workers’ compensation exclusive remedy argument would be easy.

What I really want to emphasize here are the distinctions between this McDonald’s public nuisance case and the now-dismissed Smithfield Foods case. Here the case has been filed in state court—very deliberately, I suspect—and not in federal court. Here a state court judge may have a good deal more sympathy with, and for, local nuisance laws (in-state defendants may also assist in fending off prompt removal to federal court).  While the doctrine of primary jurisdiction (possessed by a federal agency) can apply to wrest a state court of its otherwise proper jurisdiction—it has happened in federal and environmental and labor law contexts, for example—there may be unclear questions of important state law that could give a federal court—under various abstention doctrines—pause before depriving the state court of jurisdiction.

On the merits, the most important allegation for me (space prevents going through the complaint at length) is: “McDonald’s decision to remain open while simultaneously failing to comply with minimum basic health and safety standards at its restaurants, including guidance from the CDC and other public health standards necessary to stop the spread of COVID-19, is causing, or is reasonably certain to cause, further spread of the disease to Plaintiffs, their family members, McDonald’s other employees, and the general public.” Hence, the “publicness” of a public nuisance.

Tellingly, the complaint seeks only injunctive relief. The motivation for that limitation is probably to diminish standing problems since the state law remedy in nuisance is abatement, in its essence a very injunctive-like, traditional state law remedy applicable to the community. (Some have asked me whether in the cases I previously criticized the objective might have been to obtain an injunction; but ordinarily one must be able to show the likelihood of success on the merits of some underlying cognizable claim to obtain an injunction). This case really frames the state “police power” tension interestingly. We will see what happens.

Michael C. Duff

May 20, 2020 | Permalink | Comments (0)

Senate Passes Covid Disability/Death Presumption for First Responders

As you may already have heard, the Senate has passed a Covid-19 presumption, S. 3607. My abridged rendering is as follows. The presumption bill—which is keyed to a federal first responder catastrophic injury/death benefit statute, 34 U.S.C. § 10281 et seq.—provides federal death or disability benefits (as the case may be), in a lump sum, to “public safety officers” as defined under federal law (generally what we would refer to as “first responders”). The causation presumption is new (I find no causation presumption in the referenced laws).

For Death Benefits

Unless competent medical evidence establishes that the death of a public safety officer . . . was directly and proximately caused by something other than COVID–19, COVID–19 (or complications therefrom) suffered by the public safety officer shall be presumed to constitute a personal injury within the meaning of [Federal law] . . . , sustained in the line of duty by the officer and directly and proximately resulting in death, if—the officer engaged in a line of duty action or activity between January 1, 2020, and December 31, 2021; the officer was diagnosed with COVID–19 (or evidence indicates that the officer had COVID–19) during the 45-day period beginning on the last day of duty of the officer; and evidence indicates that the officer had COVID–19 (or complications therefrom) at the time of the officer's death.

Thus, the presumption

  • Applies only to public safety officers suffering from death
  • Is a presumption of death sustained in the line of duty (that is to say, gives full causation)
  • Is rebuttable by evidence of direct and proximate causation from another source
  • Applies only if the officer engaged in “duty action” between 1/1/20 and 12/31/21
  • Applies only if the officer “had” Covid 19 during 45 days after officer terminated work
  • Applies only if officer also had Covid 19 at time of death

For Disability Benefits

“COVID–19 (or complications therefrom) suffered by a public safety officer shall be presumed to constitute a personal injury within the meaning of section 1201(b) of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (34 U.S.C. 10281(b)), sustained in the line of duty by the officer, if—the officer engaged in a line of duty action or activity between January 1, 2020, and December 31, 2021; the officer was diagnosed with COVID–19 (or evidence indicates that the officer had COVID–19) during the 45-day period beginning on the last day of duty of the officer.

Thus, the presumption

  • Applies only to public safety officers suffering from disability [as defined by federal law]
  • Is of an injury sustained in the line of duty (that is to say, gives full causation)
  • Applies if the officer engaged in “duty action” between 1/1/20 and 12/31/21
  • Applies if the officer had Covid during 45 days after officer terminated work 

One curiosity surfaces on a first reading of the disability presumption: it is not explicitly rebuttable. I am not clear about why the death benefit would be subject to a rebuttable presumption while a disability benefit is subject (as I read the language, at least) to an irrebuttable presumption.  Perhaps it is simply a question of anticipated claim value. 

Benefits are paid in lump sum and, according to WorkCompCentral (behind paywall here), “the program provides a lump-sum payment of $359,316 and education assistance of $1,224 per month for spouses and children.” (The lump sum figure is inflated from $250,000 in earlier versions of the death/catastrophic injury benefit statute).

A few comments. First, a legislature knows how to draft a causation presumption when it wishes to do so (contrast my comments on the recent Wyoming presumption). Second, the development will no doubt intensify the national debate on the scope of the essential workers category. It will be interesting to see if the House has thoughts in this area. Third, a “someday” federalization of workers’ compensation could come in mysterious ways. Federal action in this area suggests a concern that state systems may not be adequate to shoulder the Covid burden, at least when it comes to first responders. Finally, federal benefits would not be covered by anyone’s version of a liability shield.

Michael C. Duff

May 20, 2020 | Permalink | Comments (0)

Monday, May 18, 2020

One of These Things is Not Like the Other: Not All Workers’ Compensation Covid-19 Presumptions Are Equal

I am going to resist the temptation to don my evidence professor hat and go through a tortuous discussion of the distinction between inferences and presumptions, bursting bubble presumptions, and the entire panoply of interesting presumption “stuff.” It is enough for my purposes to simply set out some Covid-19 presumptions to drive the discussion. I am not focused here on the classification of employees entitled to the presumption or on the manner in which the presumption may be rebutted. My sole inquiry is on the presumption itself; in other words, presumption of what?

Wyoming passed a Covid-19 presumption over the weekend. In relevant part, here is what it says:

“Injury” does not include [Wyoming has a very broad definition of "injury" and no “accident” requirement]:


Any illness or communicable disease unless the risk of contracting the illness or disease is increased by the nature of the employment.  For the period beginning January 1, 2020 through December 30, 2020, if any employee in an employment sector for which coverage is provided by this act is infected with the COVID‑19 Coronavirus, it shall be presumed that the risk of contracting the illness or disease was increased by the nature of the employment;

New Jersey passed a Covid-19 presumption last week. In relevant part, here is what it says:

If, during the public health emergency . . . an individual contracts coronavirus disease during a time period in which the individual is working in a place of employment other than the individual’s own residence as a health care worker, public safety worker, or other essential employee, there shall be a rebuttable presumption that the contraction of the disease is work related and fully compensable for the purposes of benefits provided under [the Act].

A California Senate committee just passed a bill containing a Covid-19 presumption. In relevant part, here is what it says:

An injury [Covid-19 is defined as such] that develops or manifests itself while a critical worker is employed is presumed to arise out of and in the course of the employment. This presumption is disputable and may be controverted by other evidence. Unless controverted, the appeals board is bound to find in accordance with the presumption.

You can probably already see that Wyoming’s presumption is much weaker than the New Jersey presumption or the proposed California presumption. A presumption of “increased risk” is not the same as a presumption that a disease “arose out of and in the course of” employment. The causation standard in Wyoming is set out under WCSD v. Bruhn, 951 P.2d 373 (Wyo. 1997): causation is established “if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment then it arises out of employment . . .”

Nothing in a presumption of “increased risk” changes this general causation rule. Nor does it relax the need for medical causation. The statute had not previously covered “any illness or communicable disease unless the risk of contracting the illness or disease is increased by the nature of the employment.” So what the Wyoming presumption does is negate the requirement to show increased risk with respect to communicable diseases. Will that make Covid-19 cases easier to prove? Possibly. But a presumption of increased risk of Covid-19 contraction is simply not a presumption that Covid-19 is “work related and fully compensable for the purposes of benefits” nor is it a presumption that Covid-19 contracted by a worker “is presumed to arise out of and in the course of the employment.”

I like to believe this was not an exercise in smoke and mirrors.

Michael C. Duff

May 18, 2020 | Permalink | Comments (0)

Wednesday, May 13, 2020

The Stimulus “Liability” Debate: Don’t Forget Texas Elective Workers’ Compensation

Listening in on yesterday’s Senate Hearing on Corporate Liability During the Coronavirus Pandemic—you can find the video here and do a text search for “workers’ compensation”—I was especially pleased to hear workers’ compensation immunity discussed at 1:14:20 to about 1:14:50. Senator Sheldon Whitehouse of Rhode Island specifically asked whether blanket corporate immunity would constitute subsidization of workers’ compensation insurers. Witness Professor David Vladeck of Georgetown University Law Center responded that it very well could if workers’ compensation were not carved out of the bill. I did not hear anyone contend during the hearing that workers’ compensation could not be part of an immunity blanket, which is food for thought.

Coincidentally, I had been reading in the Atlantic as the Senate hearing was commencing an exceptionally good and sobering account of the nearly catastrophic events unfolding in the meatpacking industry. I recommend the article to you generally, and there is one point made within it that warrants reflection. Even if immunity conferred as a precondition for passing the next round of stimulus contains “only” stiff tort limitations, consider the situation potentially faced by certain Texas meatpacking employees (the article discusses the Tyson beef slaughterhouse in Amarillo, Texas). In the words of Eric Schlosser, author of the Atlantic piece (I do not necessarily vouch for the legal accuracy of everything contained in the excerpt, but the facts are clear enough):

 In Texas, where private employers are not required to carry workers’ compensation insurance, Tyson has opted out of the state system completely.

When a worker gets injured at the Tyson beef slaughterhouse in Amarillo, Texas, in order to get medical care from the company, that person must first sign a document saying:

"I hereby voluntarily release, waive, and forever give up all my rights, claims, and causes of action, whether now existing or arising in the future, that I may have against the company, Tyson Foods, Inc., and their parent, subsidiary and affiliated companies and all of their officers, directors, owners, employees, and agents that arise out of or are in any way related to injuries (including a subsequent or resulting death) sustained in the course of my employment with the company."

If the injured worker doesn’t sign the waiver, that person can be fired—and has to file a lawsuit against Tyson to get any payments for medical bills. It’s a fight that an immigrant worker is unlikely to win against a multinational corporation with annual revenues of about $40 billion.

If the Texas immigrant meatpacking worker would have had a "difficult" time prevailing in a tort suit before blanket immunity, the worker would have no possibility of prevailing “post-blanket.” Outcome? No possibility of workers’ compensation or tort remedies. That’s got to offend someone’s constitution.

Michael C. Duff      

May 13, 2020 | Permalink | Comments (0)

Saturday, May 9, 2020

Painful Lessons on the Workers’ Compensation Exclusive Remedy Rule: Desperate Litigation in the Meatpacking Industry

I have had a couple of inquiries in the last few days about lawsuits filed by employees against meatpacking plants. One illustrative case is Benjamin v. JBS, Phila. Ct. Com. Pl, 5/7/20. Another is Blanca Esther Parra v. Quality Sausage Co., Tex. Dist. Ct., 5/4/20. The fact patterns are essentially the same: the employer breached its duty to provide a safe work environment because it did not provide proper personal protective equipment, enforce social distancing measures, or comply with the Centers for Disease Control and Prevention’s guidelines to prevent the spread of the coronavirus. Infections were reported early in April (or so) and the employer knew that employees were sick. In one variation it is alleged that the employer intentionally misrepresented the safety of a facility.

In the workers’ compensation community we can sometimes be surprised at how little the general public (and apparently some practicing lawyers) know about even the basic operation of workers’ compensation. Inquirers sometimes seem surprised to learn that the only question I have is whether the individual hurt or killed “by” work is a statutory employee. If so, I obviously tell them that the harmed individual’s exclusive remedy against the employer is workers’ compensation. It is true that in some states intentional torts are not covered by workers’ compensation. You can imagine my surprise when reviewing court pleadings in these cases to encounter page after page of negligence allegations rather than the allegations I would expect: “the employer had the purpose of injuring or killing the employee, or knew to a substantial certainty that injury or death would result from its conduct.” Texas, of course, is a special case because it is the only state in the country in which employers are presumptively not covered by workers’ compensation and must opt into the system to be covered. A Texas employer choosing to “go bare,” may be liable in negligence. Even so, I would certainly expect a plaintiff (possessing knowledge of the existence of workers’ compensation) to shield itself against quick dismissal by informing the court at the outset that the employer has not opted into the Texas workers’ compensation system.

In short, the suits I have been looking at bespeak mounting desperation. Unless I am missing something they will be promptly dismissed. The situation has the feel of clients insisting, out of a sense of outrage, that something, anything be filed. As an injury practitioner it was often extremely difficult for me to resist the temptation to file these suits. I understand. And perhaps it will open a broader dialogue about the structure and adequacy of our state-law injury system.

Michael C. Duff

May 9, 2020 | Permalink | Comments (0)

Wednesday, May 6, 2020

Workers’ Compensation Covid-19 Presumption Established in California

Governor Newsom has issued an executive order establishing a workers’ compensation Covid-19 presumption in California. Key introductory points are that the presumption appears to apply to most if not all employees, it is rebuttable, and it is temporary, expiring sixty days after the date of the Executive Order (it has some retroactive application, however). In the interest of efficiency, I will quickly lay out what seem to me to be key sections in distilled and bulleted format [and insert occasional bracketed notes]. The full Order is here. One preliminary comment from this outsider: it appears a great deal of Covid testing and medical diagnostics will be required. One presumes the system has the infrastructure to accomplish it.  

Covid-19 (which I will subsequently refer to as “the disease”) is presumed to arise out of and in the course of the employment for purposes of awarding workers’ compensation benefits if:

  • An employee (apparently, any employee) is diagnosed with the disease within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction.
  • That day was on or after March 19, 2020 [This seems to be the earliest possible date of the presumption's application].
  • The place of employment was not the employee’s home.
  • The diagnosis was performed by a Board-certified physician [it appears that all diagnoses must be conducted by Board-certified physicians] and confirmed by further testing within 30 days of the original date of diagnosis.
  • The presumption is “disputable” but unless “controverted” the Workers’ Compensation Appeals Board is bound by it.
  • The presumption applies only to dates of injury occurring through 60 days following the date of the Executive Order [but, again, note the retroactive application above].
  • If liability for a claim is not rejected within 30 days after the claim is filed, the illness is presumed compensable, unless rebutted only by evidence discovered after the 30-day period. [Does this incentivize contests?]
  • An accepted claim is eligible for all benefits applicable under the workers’ compensation laws.
  • State sick leave benefits available in response to the disease must be exhausted before workers’ compensation benefits are available.
  • If an employee is diagnosed with the disease on or after the date of the Executive Order, the employee must be certified within the first 15 days after the initial diagnosis, and must be recertified every 15 days thereafter, for the first 45 days diagnosis; or
  • If the employee was diagnosed with the disease before the date of the Executive Order [as I read the language retroactive only to March 19, 2020], the employee must obtain a certification, within 15 days of the date of the Executive Order, documenting the period for which the employee had the disease and was unable to work, and must be recertified every 15 days thereafter, for the first 45 days following diagnosis.
  • The Administrative Director of the Division of Workers’ Compensation is authorized to adopt, amend, or repeal regulations deemed necessary to implement the Executive Order. Regulations promulgated in this manner “shall be exempt from the Administrative Procedures Act, except that the Administrative Director shall submit the regulations to the Office of Administrative Law for publication in the California Regulatory Notice Register.” [I assume this means that notice and comment rulemaking are suspended but publication of the rule is still required—I do not know enough California administrative law to ascertain whether this is problematic. It “feels” problematic].
  • The Executive Order applies to all workers’ compensation insurance carriers, self-insured employers, and employers otherwise carrying their own risk, including the State of California.

That is a lot to digest; and I have lots of questions. It is also hard to think about this development without also considering the California Attorney General’s suit against “the Gig companies” this week which, if successful, could greatly expand the pool of employees subject to the presumption – though I doubt events could move that fast. Nevertheless, this is a whirlwind.

 Michael C. Duff

May 6, 2020 | Permalink | Comments (0)

Tuesday, May 5, 2020

Novel Smithfield Foods Public Nuisance Suit Dismissed Without Prejudice

In what for me is an ominous development the Smithfield Foods public nuisance case, about which I blogged below, has been summarily denied by a Missouri federal district court and the case has been dismissed.The decision took all of twelve days. In a nutshell, the court accepted the primary jurisdiction arguments that I have previously discussed, but will not repeat here. Sometimes cases are illustrative of clear legal principles. This, for me, is not one of those cases. Sometimes cases set “mood points.” And I fear that is the situation here. I have great concern about the prospect for an unreflective, anti-liability fervor enveloping the Great Reopening, though this decision did not directly reach questions of liability that could impact state workers’ compensation or tort law. Narrowly read, the heart of the case is simply that the court thought it should not interfere with OSHA or the USDA:    

 . . . OSHA has already requested information about the Plant’s safety measures. And if OSHA fails to act quickly on this information, Plaintiffs have a remedy: they may receive emergency relief through OSHA’s statutory framework. Section 662(a) of the Occupational Safety and Health Act . . . permits the Secretary of Labor to petition the court “to restrain any [dangerous] conditions or practices in any place of employment . . . which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by [the Act].” Upon the filing of such petition, “the district court shall have jurisdiction to grant such injunctive relief or temporary restraining order pending the outcome of an enforcement proceeding.” . . . If the Secretary “arbitrarily or capriciously fails to seek relief,” a worker can file a writ of mandamus to compel the Secretary to seek such an order . . . Granted, there may be some delay before Plaintiffs can invoke this procedure, but following this procedure ensures the USDA and OSHA can take a measured and uniform approach to the meat-processing plants under its oversight. The Court’s intervention at this point, on the other hand, would only risk haphazard application of the Joint Guidance. In sum, the Court holds that the issue of Smithfield’s compliance with OSHA’s guidelines and regulations falls squarely within OSHA/USDA’s jurisdiction. The Court finds dismissal without prejudice is preferable to a stay here so that Plaintiffs may seek relief through the appropriate administrative and regulatory framework.

The precise problem, of course, is that the Secretary of Labor is unlikely to petition the court “to restrain any [dangerous] conditions or practices . . .” And, yes, there “may” be “some delay” before a worker could pursue a writ of mandamus—such significant delay that the suggestion borders on the detached and unserious since workers are in hot spots now. I suspect I am not alone in failing to anticipate on the horizon the White Horses of OSHA and the USDA.

I tend to think of worker protections as front-end (regulatory) or back-end (compensatory, including tort law and workers’ compensation). The front-end here may be hopelessly tied up in various doctrines of empty-preemption and awaiting the action of inactive agencies. (Waiting for Godot?). (Granted the dismissal was "without prejudice," but I suspect courts will keep waiting). It is terrifying to contemplate the back-end somehow being obstructed by the Defense Production Act (or something worse from Congress). Although the court did opine that plaintiffs were, in any event, unlikely to prevail on the state public nuisance claim, I am not sure what comfort one can take from that determination, or whether a contrary conclusion on that issue would have changed the ultimate outcome. Perhaps it is no surprise that the article I have just had accepted by a law review is about the law of work stoppages, including the right of both union and non-union employees to act concertedly for their “mutual aid or protection.”

Michael C. Duff

May 5, 2020 | Permalink | Comments (0)

Saturday, May 2, 2020

The Public Nuisance Litigation in a Smithfield Foods Meatpacking Case: Workers’ Compensation Implications?

As Senate Republicans and corporations continue to lobby for the broadest possible “liability shields” in connection with the Great Reopening, a novel lawsuit framed in terms of public nuisance theory is being litigated in a Missouri federal court. From the Nolo Plain-English Legal Dictionary, a public nuisance is defined as “[a]n activity or thing that affects the health, safety, or morals of a community. It is distinguished from a private nuisance, which harms only a neighbor or a few individuals. For example, a factory that spews out clouds of noxious fumes is a public nuisance, but playing drums at three in the morning is a private nuisance bothering only the immediate neighbors.”

So, under the theory of the case I'm about to discuss, when a meat-packing plant does not conform to, for example, CDC social-distancing guidelines, it is not only the worker who is exposed to a heightened risk of Covid-19 contraction, it is the entire community. The suit Download Smithfield Public Nuisance Base Complaint, styled Rural Community Workers Alliance and Jane Doe v. Smithfield Foods, Inc. and Smithfield Fresh Meats Corp., has been filed in the U.S. District Court for the Western District of Missouri. As I read the pleadings, the suit seeks not to impose “liability” but to compel the defendants not to do “extremely dangerous stuff” that might impact the health and safety of the surrounding community (through injunction and the remedy of abatement). I think of it as an “anti-externality” theory. The genius of the litigation is that it seems to circumnavigate common standing problems by invoking state nuisance law which confers (by definition) standing to a potentially broad swath of plaintiffs—a result that can be difficult under other legal theories in which a narrower class of plaintiffs must show concrete and particularized harms with respect to them.

The outcome could have potentially important workers’ compensation ramifications because it tests the limits of the federal Defense Production Act (DPA) in interplay with state law. As I said above, DPA “liability” is not at issue, because injunctive relief and abatement are sought. Defendants nevertheless—as one part of their “public policy” defense—attempt to displace state authority, under Missouri law, in the traditional state area of nuisance law. If the state can be easily ousted in this suit it may set a “mood point” for what could happen if questions of liability--including workers' compensation liability--under the DPA arise (this is the issue I think is of most interest to workers’ compensation professionals).

I have just gone through defendant Smithfield’s “Opposition to Preliminary Injunction.” (Scintillating material!). Here is my quick, abbreviated analysis. First, says defendant, plaintiff does not qualify for injunctive relief–unlikely to succeed on the state-law merits, no irreparable harm, & etc. Second, defendants provide a number of public policy arguments, in effect drawing on federal law and/or policy, that can be condensed to the following:

  • The injunction would disrupt, contrary to federal Department of Homeland Security guidance, an “essential business.”
  • The court should defer to (mainly federal) regulatory agencies “to promote uniformity and consistency within the particular field of regulation” (a primary jurisdiction argument—the court’s ruling might conflict with, for example, OSHA).
  • The injunction sought lacks necessary specificity and is overly broad. Plaintiffs seek to impose vague requirements on Smithfield that would inevitably lead to disputes over compliance, and turn this Court into a referee over workplace safety issues.

As an initial matter, the defendant’s ambiguity argument seems to be with the CDC Guidelines, not the plaintiffs. Second, the interference with critical infrastructure argument sweeps too far. If defendant was lobbing cannonballs into the surrounding community could it be seriously contended that a court could not interfere with the conduct? If the answer is no, is operating a Covid hotspot and sending sick employees home into the community less dangerous than lobbing cannonballs? I think not. Third, for me the persuasive rejoinder by plaintiff to the actual legal argument (internal citations omitted) is that:

Plaintiffs’ public nuisance claims seek a remedy against business operations that cause a harm to the public generally. OSHA’s jurisdiction focuses on the workplace. It has no authority to promulgate standards to protect the general public . . . And although Missouri’s cause of action for violation of the right to a safe workplace certainly relates to occupational safety, that claim has long formed the basis for injunctive relief in court, even subsequent to the creation of OSHA in 1970. Plaintiffs bring claims under state common law doctrines that OSHA’s regulatory scheme does not displace, and there is no reason for this Court to defer to the primary jurisdiction of OSHA before resolving those claims. In fact, primary jurisdiction is not applicable where plaintiffs do not seek to enforce a federal statute or regulation but bring “an independent state law cause of action for negligence and strict liability.”

In other words, a court cannot interfere with an agency when it issues orders involving conduct outside the agency’s statutory regulatory authority. In a supplemental pleading, after the President’s Defense Production Act Order, defendants doubled-down on the primary jurisdiction argument. Defendants contend that the Order “gives primary jurisdiction over Smithfield’s current operations to the Secretary of Agriculture, and any injunction issued by this Court would undermine that jurisdiction. The order requires the Secretary of Agriculture to consult with executive departments and agencies to balance, on the one hand, the importance of the nation’s meat supply and, on the other, compliance with ‘the guidance for the operations of meat and poultry processing facilities jointly issued by the CDC and OSHA.’” The problem with the argument is that it does not comport with general notions of primary jurisdiction, which is a doctrine to be sparingly applied: no well-structured agency policy “deliberation” is being interfered with. Indeed, the hue and cry is that federal agencies are not acting. Secretary of Agriculture “balancing consultation” with executive departments seems worlds apart from the kinds of court interference with agency functions the primary jurisdiction doctrine contemplates.

To repeat myself a bit, the takeaway for a workers’ compensation audience may be that the thrust of the defendants’ arguments is that common law tort claims, and perhaps workers’ compensation claims, may be brushed aside in the interests of evolving and vague federal “public policy.” That does not square well with the historic police powers of the states. In this country national emergencies do not so easily lead to the instant annihilation of historically-grounded rights.

Michael C. Duff

May 2, 2020 | Permalink | Comments (0)

Tuesday, April 28, 2020

President Orders Continued Meat Production: And Then There's the 13th Amendment

Update: The President's Order has issued. I now have doubt as to whether the Defense Production Act provides immunity to tort actions (if that was the plan) to parties bound by it outside the context of military contractors. See In Re Aircraft Crash Lit. Frederick, Md., 752 F. Supp. 1326, 1330 n.2 (S.D. Ohio 1990); see In Re Agent Orange Product Liability Litigation, 597 F. Supp. 740, 843 n.27 (E.D.N.Y. 1984). As we used to say back in my ice hockey days, this could be a donnybrook.

When I was a young whipper-snapper, an airline supervisor once ordered me to put my rain gear on and enter an airplane baggage compartment into which "lavatory fluid" had discharged due to a malfunction. I told him to pound sand. That memory popped into my head when I read that the President was ordering meat facilities to remain open (disclosure: I became a vegetarian in 1983 - how prescient of me). As Bloomberg reports (here behind a paywall):

President Donald Trump plans to order meat-processing plants to remain open, declaring them critical infrastructure as the nation confronts growing disruptions to the food supply, a person familiar with the matter said.


Trump plans to use the Defense Production Act to order the companies to stay open, and the government will provide additional protective gear for employees as well as guidance, according to the person.


Trump signaled the executive action at the White House on Tuesday, saying he planned to sign an order aimed at Tyson Foods Inc.’s liability, which had become “a road block” for the company. He didn’t elaborate.


The order, though, will not be limited to Tyson, the person said. It will affect all processing plants supplying beef, chicken, eggs and pork.


The White House decided to make the move amid estimates that as much as 80% of the U.S. production capacity could shut down.


Illnesses in the meat-processing industry and shifts in demand as restaurants have closed have disrupted the food supply chain in recent weeks. Dairy farmers are dumping milk that can’t be sold to processors, broiler operations have been breaking eggs to reduce supplies and some fruit and vegetables are rotting in fields amid labor and distribution disruptions.


Many low-income Americans, meanwhile, have been waiting in long lines at food banks, which have reported shortages.


Asked about the supply of food to the country, Trump said: “There’s plenty of supply.”

The deep game here may be that the Defense Production Act has been interpreted as providing broad liability immunity to producers compelled to comply with its terms. See the statute here, and agriculture-specific anti-liability regulation here.  So "anti-liability" is apparently coming by Executive Order and by Mitch McConnell edict. I think it remains to be seen how far into state law the immunization will purport to intrude (is workers' compensation liability included?). Some of us can avoid lavatory fluid, and some of us can't. But if this goes much further the constitutional dimensions of tort law may be tested a lot more starkly than in prior periods of "tort reform." Perhaps we will reach a point where even the most desperate of workers will not enter Covid-19 hot zones. The next likely thought in the President's head may encounter the 13th amendment of the U.S. Constitution:

"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

And, as a colleague of mine just said, "Happy Workers' Memorial Day!"

Michael C. Duff 

April 28, 2020 | Permalink | Comments (0)

Thursday, April 23, 2020

White Swans and the Pesky Constitution: Reopening of the Economy at Any Cost?

One of my favorite commentators, Nassim Taleb, thinks the Covid-19 Experience is a White Swan, not a black one. (He predicted the event – or one a lot like it – back in 2007. And I am under the impression that it has always been just a matter of time). It is also not hard to foresee that the economy will be “reopened” too quickly, at least in some quarters. And, equally predictably, comes the policy cry for advance insulation of business interests from tort liability—indeed advance insulation from all liability. One could, of course, avoid tort liability by not acting tortiously—indeed, it will not be easy for plaintiffs to establish liability. But, you know how it is, a couple of favorable facts and you could find yourself before a jury (or a workers’ compensation adjudicator given the encroachment of the Covid presumptions). And juries and other public factfinders have a nasty habit of seeing things differently from the prepared narratives of the powerful, a habit the founders were counting on. A recent piece in Bloomberg Law is dripping with the disappointment being experienced by the liability-insulation contingent.

Businesses that reopen during the coronavirus pandemic likely won’t be completely off the hook if workers and customers fall ill, even as the Trump administration looks at ways to ease employers’ liability concerns.

President Donald Trump and White House economic adviser Larry Kudlow said this week that the administration is exploring protections for business from certain legal risks related to reopening. Kudlow described the idea as a “guardrail” of sorts, but stopped short of any concrete proposals.

Business lobbyists say it’s unlikely that the administration could successfully create a broad shield protecting companies from potential personal injury, workplace safety, and other litigation. Some are looking instead for a targeted response that would ease some of the risk at the federal level.

“There is a worry about lawsuits, but I think the idea of some kind of a ‘safe harbor’ for employers from all forms of liability is a bit of a pipe dream,” Randy Johnson, a corporate lawyer for Seyfarth Shaw in Washington, told Bloomberg Law. “Various opponents, like Democrats, the plaintiffs’ bar, and organized labor, would line up against anything like that.”

Absent from the Bloomberg piece is any mention of the Constitution  -- that pesky document instilling in “Democrats, the plaintiffs’ bar, and organized labor” the confidence that they could successfully “line up against anything like that.” I get the sense it would come as a surprise to some of the journalists writing these pieces that Federalism is just a bit more complicated than Larry Kudlow announcing from an office that state common law tort and workers’ compensation rights have been suspended. I also find no mention in the piece of the necessary corollary to absolute liability insulation: the victim will bear all the costs of the harm every time. I think one should be very clear about the equities of the situation before subscribing to such a harsh rule, as we encounter the “reopening” that Taleb would undoubtedly classify as yet another White Swan event.

Michael C. Duff

April 23, 2020 | Permalink | Comments (0)

Tuesday, April 21, 2020

Covid Causation Presumption Table as of April 20

 As compiled by Will Aitchison, Director, Labor Relations Information System. Obviously these developments are fluid so the table is likely already out of date. But it provides a snapshot.

Michael C. Duff





No presumptive causation

No bills pending in Legislature.


Conclusive presumption

On April 10, Gov. Mike Dunleavy (R) signed into law SB 241, which contains a conclusive presumption that a firefighter, paramedic, emergency medical technician, peace officer, or health care provider who contracts COVID-19 after an on-the-job exposure contracted the disease as a result of an on-the-job exposure.


No presumptive causation

No bills pending in Legislature.


No presumptive causation

No bills pending in Legislature. On April 14, Gov. Asa Hutchison (R) issued an order allowing first responders and healthcare workers to be eligible for workers compensation but only if they can demonstrate a causal connection between their diagnosis of and exposure to COVID-19 as a result of their employment or occupation.


No presumptive causation, but in flux

Reports are that Governor Gavin Newsom (D) may establish presumptive causation through taking executive action. If that does not occur, legislative bills likely to be introduced during the week of April 20.


No presumptive causation

No bills pending in Legislature.


No presumptive causation

No bills pending in Legislature.


No presumptive causation

No bills pending in Legislature.


No presumptive causation, but see notes

On April 1, the Chief Financial Officer for the State of Florida issued a directive applicable only to state employees. The directive, which state agencies can choose not to follow, creates a presumptive causation for employees testing positive for COVID-19.

The Florida League of Cities, which runs a workers’ comp insurance trust covering many cities and counties, sent a letter to Florida’s CFO stating that it will apply a presumption that exposure to COVID-19 is work-related for the purpose of workers’ comp for “first responders.”


No presumptive causation

No bills pending in Legislature.


No presumptive causation

No bills pending in Legislature.


No presumptive causation

No bills pending in Legislature.



On April 13, the Illinois Workers’ Compensation Commission announced an “emergency” amendment to its Rules of Evidence establishing presumptive causation if (1) a first responder or front-line worker is diagnosed with COVID-19 during a COVID-19-related state of emergency, and (2) the virus is causally connected to the hazards or exposures of the claimant’s employment. The rule shifts the burden of proof to employers to show off-the-job causation.


No presumptive causation

No bills pending in Legislature.


No presumptive causation

No bills pending in Legislature.


No presumptive causation

No bills pending in legislature.



By executive order on April 9, 2020, Gov. Andy Beshear (D) created a presumption that “removal from work by a physician” for COVID-19 is related to the job..


No presumptive causation

No bills pending in legislature.


No presumptive causation

No bills pending in legislature.


No presumptive causation

No bills pending in legislature.


No presumptive causation

Bills pending in legislature.



On March 18, Gov. Gretchen Whitmer (D), in conjunction with Michigan’s Department of Labor and Economic Opportunity, issued emergency rules creating an irrebuttable presumption that COVID-19 was caused by the job if (1) the employee is quarantined at the direction of the employer due to confirmed or suspected COVID-19 exposure; (2) receives a COVID-19 diagnosis from a physician; (3) receives a presumptive positive COVID-19 test; or (4) receives a laboratory-confirmed COVID-19 diagnosis.



On April 14, Gov. Tim Walz (D) signed H.F. 4537, establishing presumptive causation for emergency first responders and front-line workers unless the employer is able to prove the infection happened elsewhere.


No presumptive causation

No bills pending in legislature.



On April 8, Governor Mike Parson (R) issued an executive order applicable for the duration of the COVID-19 declared emergency. The order provides in relevant part that a first responder “who has contracted or is quarantined for COVID-19, is presumed to have an occupational disease arising out of and in the course of their employment. Such presumption shall include situations where the First Responder is quarantined at the direction of the employer due to suspected COVID-19 exposure, or the display of any COVID-19 symptoms, or receives a presumptive positive COVID-19 test, or receives a COVID-19 diagnosis from a physician, or receives a laboratory–confirmed COVID-19 diagnosis.” The presumption can be overcome by clear and convincing evidence.


No presumptive causation

No bills pending in legislature.


No presumptive causation

No bills pending in legislature.


No presumptive causation

No bills pending in legislature.

New Hampshire

No presumptive causation

No bills pending in legislature.

New Jersey

No presumptive causation

Bills pending in legislature; president of senate has announced support.

New Mexico

No presumptive causation

No bills pending in legislature.

New York

No presumptive causation

Bills pending in Legislature, senate Bill S8117A. Would create a presumption that impairment of health caused by COVID-19 was incurred in the performance and discharge of duty of certain police, parole and probation officers and other emergency responders.

North Carolina

No presumptive causation

No bills pending in legislature.

North Dakota

Not really

By executive order on March 25, Gov. Doug Burgum (R) allowed workers’ compensation benefits for first responders, but only during quarantine and for a maximum of 14 days. Other claims require first responders to prove “that the infection resulted from a work-related exposure.”


No presumptive causation

No bills pending in legislature.


No presumptive causation

A group of Oklahoma legislators has written cities and counties expressing the hope that they will accept workers’ compensation claims from first responders suffering from COVID-19. However, no bills pending in legislature.


No presumptive causation

No bills pending in legislature.


No presumptive causation

No bills pending in legislature.

Rhode Island

No presumptive causation but in flux

On April 17, Governor Gina Raimondo (D) announced that first responders “who contract coronavirus can now be eligible for workers’ compensation.” However, no executive order yet issued.

South Carolina

No presumptive causation

No bills pending in legislature.

South Dakota

No presumptive causation

No bills pending in legislature.


No presumptive causation

No bills pending in legislature.


Presumptive causation, partially

On March 30, Texas Gov. Greg Abbott (R) suspended two sections of the Texas Labor Code during the pandemic, essentially creating a conclusive presumption for public safety employees seeking “medical reimbursements” during the pandemic.


Likely to be presumed

On April 13, the Legislature approved HB 3007, establishing presumptive causation for first responders exposed to COVID-19 on the job. Awaiting governor’s signature.


Presumptive causation in existing law, but only for firefighters

21 V.S.A. Section 601 (11)(H)(i) provides that for firefighters and members of a rescue or an ambulance squad, “disability or death resulting from lung disease or an infectious disease either one of which is caused by aerosolized airborne infectious agents or blood-borne pathogens and acquired after a documented occupational exposure in the line of duty to a person with an illness shall be presumed to be compensable, unless it is shown by a preponderance of the evidence that the disease was caused by nonservice-connected risk factors or nonservice-connected exposure.”


No presumptive causation

No bills pending in legislature.



On March 5, Governor Jay Inslee (D) announced that Washington’s Department of Labor and Industries will pay wage-loss and medical treatment expenses for any health care worker or first responder who is quarantined because of coronavirus exposure or who contracts COVID-19 after been exposed on the job.

West Virginia

No presumptive causation

No bills pending in legislature.


In flux

On April 15, Gov. Tony Evers (D) signed Assembly Bill 1038, an omnibus COVID-19 bill that, in part, created presumed causation if the public safety employee can show an on-the-job exposure to COVID-19. Because of last-minute amendments to legislation, questions exist as to precisely what the employee must prove. The governor has announced support for corrective legislation.


No presumptive causation

No bills pending in Legislature.


Presumed, with some limitations

The Department of Labor takes the position that “the employment-related incidence of COVID-19 is more likely to occur among members of law enforcement, first responders and front-line medical and public health personnel, and among those whose employment causes them to come into direct and frequent in-person and close proximity contact with the public. If a COVID-19 claim is filed by a person in high-risk employment, the Office of Workers' Compensation Programs will accept that the exposure to COVID-19 was proximately caused by the nature of the employment. If the employer supports the claim and that the exposure occurred, and the CA-1 is filed within 30 days, the employee is eligible to receive Continuation of Pay for up to 45 days.”

April 21, 2020 | Permalink | Comments (1)

Tuesday, April 14, 2020

Potential Issues When Workers’ Compensation Doesn’t Apply to a Covid-19 Claim

It is elementary that workers’ compensation is the quid pro quo for a tort claim. One consequence of this principle is that where a state’s workers’ compensation law categorically excludes certain claims from coverage there is a non-frivolous argument that a tort cause of action must be revived for the injured worker or for his or her decedent. Another wrinkle has to do with intentional conduct because the original quid pro quo seemed to presume employer tort immunity only for accidental work-related injuries (think "injury by accident"). Obviously, to be able to bring a tort claim does not mean that one will win the claim. But, as a practical matter, if a plaintiff survives summary judgment, no employer or carrier will want to be before a jury in an emotionally hyper-charged case. And it is possible that the universe of Covid-19 would provide such cases.

Take the case of Evans v. Walmart, filed in the Circuit Court of Cook County Illinois on April 6. Wando Evans and Phillip Thomas passed away during the last week of March, allegedly from Covid-19 complications. Evans’ estate has alleged a litany of tortious conduct under a wrongful death theory. From the complaint:

Walmart violated the duty of care and was negligent in failing to: cleanse and sterilize the store in order to prevent infection of COVID-19; implement, promote and enforce social distancing guidelines promulgated by the governments of the United States of America and the State of Illinois; provide the Decedent and other employees with personal protective equipment such as masks, latex gloves and other devices designed to prevent the infection of COVID-19; warn the Decedent and other employees that various individuals were experiencing symptoms at the store and may have been infected by COVD-19 which was present and active within the store; adequately address and otherwise ignored other employees at the store who communicated to management that they were experiencing signs and symptoms of COVID-19; follow the recommendations and descriptions of mandatory safety and health standards promulgated by the United States Department of Labor and the Occupational Health and Safety Administration as set out in Guidance on Preparing Workplaces for COVID-19; follow the guidelines promulgated by the Center for Disease Control and Prevention ("CDC") to keep its workplace in a safe and healthy condition and to prevent employees and others within the store from contracting COVID-19; develop an Infectious Disease Preparedness and Response Plan as is recommended by the CDC; prepare or implement basic infection prevention measures as is recommended by the CDC; conduct periodic inspections of the condition and cleanliness of the store to prevent and/or minimize the risk of employees and others from contracting COVID-19 as is recommended by the CDC; provide employees with antibacterial soaps, antibacterial wipes and other cleaning agents as is recommended by the CDC; develop policies and procedures for prompt identification and isolation of sick people as is recommended by the CDC; develop, implement and communicate to its employees about workplace flexibilities and protections as is recommended by the CDC; implement engineering controls designed to prevent COVID-19 infection including, but not limited to, installing high-efficiency air filters, increasing ventilation rates in the work environment and installing physical barriers such as clear plastic sneeze guards as is recommended by the CDC; cease operations of the store and to otherwise close the store when it knew or should have known that various employees and others present at the store were experiencing symptoms of COVID-19; properly train its personnel to implement and follow procedures designed to minimize the risk of contracting COVID-19; periodically interview and/or evaluate its employees for signs and symptoms of COVID-19; prohibit employees who were exhibiting signs and symptoms of COVID-19 from working at the store or otherwise entering the premises; and hired employees via telephone and other remote means in an expedited process without personally interviewing or evaluating whether prospective employees had been exhibiting signs and symptoms of the COVID-19 prior to the commencement of their employment.

The problem, of course, is that it is not immediately evident why the conduct alleged is not covered by the exclusive remedy rule. Perhaps the gambit is to plead the conduct as “willful and wanton,” as the complaint does, in an effort to take it out of workers’ compensation coverage (and thereby exclusivity). In Illinois, it appears that intentional conduct is not subject to the workers’ compensation’s exclusive remedy. See Toothman v. Hardee's Food Sys., Inc., 304 Ill.App.3d 521, 529 (Ill.App.1999). I’m not an Illinois lawyer so I have no idea whether this is a good strategy. What I do suspect is that cases of this type will arise in any state in which the exclusivity bar does not apply to intentional conduct. (Roughly half of all states have some kind of exception to exclusive remedy for intentional, “deliberately intentional,” assaultive conduct, and the like). The cases could become especially pitched should employers require formerly quarantined employees to return to work in the absence of a crystal-clear "all clear" from Governmental authorities. Assuming causation were established, injuries (or diseases) arising from those kinds of scenarios would strike me as highly viable in tort.

Returning to the possibility that a statute may categorically exclude or not cover certain diseases—for example, so called "ordinary diseases of life"—I would anticipate some lawyers may argue that the absolute exclusion from coverage of a disease such as Covid-19 (as opposed to coverage a claimant may not think adequate) should permit a tort cause of action under state constitutional right to remedy provisions. In Wyoming, for example, the statute categorically excludes coverage of work-related "mental injuries" (except, now, in the case of first responders), and courts have allowed tort actions even where the alleged mental injury arose out of and in the course of employment. Collins v. COP Wyoming (2016).

A variety of cases may prove challenging for courts.  

Michael C. Duff

April 14, 2020 | Permalink | Comments (0)

Friday, April 10, 2020

And Now For Something Completely Different: Black Swans and other Workers’ Compensation Tales

I had kind of a love/hate relationship with Harvard Law School when I was a student there. Because I am rather an instinctive anti-factionalist—I don’t align well with political parties or other true believers—a lot of my time on that campus was unhappy. After working in the rain as a laborer for 15 years before law school, deepening an authentic love for my working class brothers and sisters, I didn’t care much for flowery speeches that did not (eventually) lead to more “real” money in the pockets of working people. But, for all that, I did learn a few things at the Harvard Law School. The somewhat controversial torts professor David Rosenberg had a big influence on me. I agreed and disagreed with him in all kinds of areas, but I heard him and engaged with his ideas. He used to do an in-class performance in which he would roll up his pant-leg, somewhat John Cleese-like (I’m presently in a very Python-esque frame of mind), and implore us not to allow legal doctrine to “stick to us.” Then, he would colorfully high-step around the room.

When I talk and think about the fragility of legal structures—including workers’ compensation—I tend to operate in Rosenberg’s spirit. We all have a recency bias. It is a survival mechanism. We tend to believe that tomorrow will be like today. But anyone who has talked to me for longer than 15 minutes knows that I don’t place recency on a pedestal. I have written over the years about the dangers to workers’ compensation of arbitration, of “opt out,” and of de facto deregulation of employment law (including workers’ compensation) through incessant tinkering with employee/independent contractor law. Also perpetually in the back of my mind lurks the idea that those employers who don’t want to pay “anything” for their workers, who embrace the strongest, thickest notions of profit maximization, are always experimenting with how to take the next major step in dramatically reducing costs. Then, when the Black Swan, the truly unexpected event, emerges, the structures that have been developed and experimented on are ready for roll-out. Does this seem paranoid? I don’t care.

There are always countervailing forces. When, in the early-20th century, during the ravages of unprecedented industrial killing and injuring fields, some captains of industry were arguing that any regulation of the injury “externalities” created by their operations violated the Constitution, workers’ compensation and liability laws arose as such a countervailing force. Now, in the throes of widespread disease and illness, some would be satisfied with spitting out a few thousand dollars per worker as an adequate remedy for what will likely be long-term, catastrophic impacts on life-chances. It matters little to me where larger visions are born. Robert Snashall, former chair of the New York Workers’ Compensation Board, proposes:

As part of the next Federal Relief Package, a Covid-19 Federal Death Benefit Fund be created and administered by the September 11th Victim Compensation Fund (VCF) with procedures adopted by the VCF; The family of any worker who dies from Covid-19 be allowed to file a claim for death benefits subject to a maximum specified dollar amount; Such death benefit claim shall be afforded a presumption that the Covid-19 is related to the decedent’s work duties; and, Such benefit claim must be reviewed and processed by the VCF and the final death award be paid within 90 days subject to any reasonable analysis and adjustment by the VCF.

Josh Hawley, conservative senator from Missouri, proposes that businesses be provided with refundable payroll tax rebates reimbursing about 80 percent of payroll costs and additionally be given rehiring bonuses for businesses for the duration of the crisis. He argues that such reimbursements “will prevent unemployment offices from being overwhelmed, keep Americans from going into debt and give families a sense of confidence that a job is waiting for them when the crisis is over.”

As an advocate for the interests of the working class, I react to Snashall and Hawley—without regard to their apparent political affiliations, which, in the current political climate, has come to mean almost nothing—in the same way I react to Mark Warner’s portable benefits schemes: what is the “cash value” to workers of these proposals? Ultimately, I embrace a broader utilitarianism than this, but there are always (well-paid) advocates for the “other side.” And rest assured that, although current constitutional law would suggest that Congress has the authority to implement many big ideas, “law” can change very quickly during historical emergencies. Do not be surprised to hear more and more about how big fixes will deprive certain propertied persons of property without due process of law.

But no matter where you are “coming from,” I would respectfully suggest that it is getting harder and harder to rationally accept that we are simply in the midst of a tricky day. Sitting here, quarantined on the high prairie in the middle of a health crisis and an almost unbelievable financial crisis (discussion of which is beyond the scope of this post but I’ll just note that I also teach bankruptcy), this humble observer thinks that tomorrow will usher in something completely different. What will workers’ compensation look like tomorrow? Probably not like it does today.

Michael C. Duff

April 10, 2020 | Permalink | Comments (0)

Sunday, April 5, 2020

Remote Law Teaching During Pandemic: Permanent Partial Benefits No Easier to Explain

To say that this is a challenging semester in which to be teaching law is an understatement. Each of us is facing unprecedented obstacles; and in my little corner of the world I am presented with the dilemma of trying to keep law students, whose lives have been turned upside down, dialed in to learning. This semester I’m teaching workers’ compensation law and bankruptcy, bodies of law that are likely to be tested in unforeseen and perhaps unforeseeable ways.

These developments have caused me to hew even more closely to general bedrock workers’ compensation principles that students can have confidence will apply in most places. With respect to causation/coverage, workers’ compensation deals with “injuries by accident arising out of and in the course of employment.” My class had already unpacked most of the major issues tending to emerge from that deceptively simple formula before we all went into quarantine.

Now, post-quarantine, we are embarking on categories of benefits (assuming causation) that are arrayed from determinations of an injured worker’s extent of incapacity (or "disability" or work-related "impairment" if you prefer). Total benefits present little conceptual difficulty. I engage in the obligatory hemming and hawing at the puzzling reduction of benefits from the “average weekly wage” to the typical two-thirds of that figure (one-half under the original 1897 British Act). “We don’t want injured workers—dazzled at the prospect of receiving the full state average weekly wage, the cap in many states—to simply stop working. We also don’t want them to engage in riskier behavior as the economists (but no one who has ever personally engaged in dangerous work) tell us they will.” It is difficult to explain a state like the one in which I teach, Wyoming, that limits receipt of “permanent” total benefits to 80 months (with the possible extension of an additional four years at the discretion of the relevant state agency). Is that an adequate quid pro quo for the loss of a tort suit? Is it adequate under anyone’s definition of adequacy? [Think of the 25-year-old rendered a quadriplegic by a work-related injury]. Surely, tort damages would have factored in all wages a worker lost – and that fails to consider pain and suffering or punitive damages. Puzzled looks from students (though harder to see on Zoom) – I move on.

In the wonderful world of permanent partial benefits, things quickly break down pedagogically. It is pretty easy to explain to students the wage loss model: injured workers are compensated for a percentage of the difference between their pre-injury and post-injury wages. Simple enough. How do we choose the percentage? Why do some jurisdictions employing this model pay benefits only for a limited period and not for the duration of the disability? “It’s too expensive.” Would a handful of very successful tort suits be less expensive? As Oliver Wendall Holmes explained, “The life of the law has not been logic: it has been experience . . . ” I move on.

Earning capacity models are similarly pretty simple to explain conceptually: instead of compensating for actual and determinable wage losses compensate instead for the difference between pre-injury wages/earning capacity and post-injury earning capacity. What is the measure of post-injury earning capacity? Prima facie it is the amount a worker is able to earn in the first post injury employment. If there is no post-injury employment, we guess with (dueling) labor market evidence (of often shaky provenance – I used to depose “experts” with 9 credits of undergraduate work). Furthermore, if there is post-injury employment, it may for a variety of reasons be an unreliable indicator actual post injury earning capacity. Do you think my sharp upper-division students are satisfied with this discussion? I move on.

At this point, many students will be receptive to the idea that perhaps a simplified proxy for wage losses (which must be continually monitored) and loss of earning capacity (which is, even in theory, imprecise) is desirable. Then I am required to expose them to “impairment-based” models of disability; to the arbitrary world of “scheduled” injuries in which a hand is worth 104 weeks of benefits and an arm at the shoulder worth 208 weeks at $300 per week (to borrow just a couple of examples from the Colorado structure). What is behind this odd architecture? Well, I agree with John Burton’s assessment (derived, as he has explained to me personally, from his understanding of Arthur Larson’s teaching) that schedules, and the permanent impairment determinations that drive them, are proxies for work disability. But as any sharp law student can quickly see—we advanced thinkers spend much time and energy forgetting this later on—there is very little explicit relationship drawn (or even attempted to be drawn) between actual disability wage losses (in either the aggregate or as applied in a particular case) and partial disability benefits paid. In other words, upon what—precisely—are the proxies based? Or to put it in law student terms, where do the numbers 104 and 208 come from?

This was Professor Burton’s problem when commenting on New York’s proposed changes to its scheduled loss of use (“SLU”) Guidelines back in 2017. Burton had no difficulty showing that “there [was] no indication that the proposed Guidelines considered any evidence on factors (1) that may affect the consequences of workplace injuries on the extent of the resulting impairment or (2) that may affect the impact of impairments on the resulting work disability. In short, there [was] no evidence that the proposed Guidelines [were] evidence-based.” The problem is that very little in the realm of impairment-based workers’ compensation seems ever to have been evidence-based. And in terms of the proxy-nature of permanent impairment—that is, the idea that it is and has been a proxy for disability—it is difficult to know what to make of the 1917 Bureau of Labor Statistics summary of American statutes that showed, even then: scheduled payments in addition to all other payments, scheduled payments as a supplement to temporary total disability, and scheduled payments supplementing wage-loss or earning capacity models. (See here at pp. 58-72). My sharper students have over the years proposed refinements along the lines of John Burton’s proposal in his commentary on the 2017 proposed New York Guideline changes: “the Workers’ Compensation Board should commission a wage-loss study of injured workers who received permanent partial disability (PPD) benefits in New York to determine if the current PPD benefits are adequate and equitable.”

Until one can say that, nationally, the bottom-line receipt by injured workers of permanent partial benefits is “adequate,” it is hard to conclude (to echo the 1972 National Commission) that the system we have is acceptable. And the argument that the system may be unconstitutional (as asymmetrical quid pro quo) will continue to resonate with worker advocates until we are either willing to make the quid pro quo comparison in good faith, or come up with a different system in which none of what I’m talking about matters. Law students have "gotten" this in the past. I just hope it all comes through over Zoom and that they can still engage, during these trying times, with what I so earnestly want to teach.

Michael C. Duff

April 5, 2020 | Permalink | Comments (0)

Wednesday, April 1, 2020

Center for Progressive Reform Post on Workers' Compensation and Coronavirus

I'm cross-posting here from the Center for Progressive Reform Blog my discussion--geared for a general audience--some of the interplay between the coronavirus and workers' compensation. I've joined the CPR as a member-scholar and aim to regularly highlight workers' compensation and workers' rights issues:

Front-line health care workers and other first responders are in the trenches of the battle against the COVID-19 virus. The news is replete with tragic stories of these workers fearing death, making wills, and frantically utilizing extreme social distancing techniques to keep their own families sheltered from exposure to the virus. Should they contract the virus and become unable to work, they may seek workers' compensation coverage, which is the primary benefit system for workers suffering work-related injuries or diseases.

I go on to discuss issues that will be familiar to this audience.

Michael C. Duff

April 1, 2020 | Permalink | Comments (0)

Saturday, March 28, 2020

Covid-19, Strikes, and Intentional Employer Misconduct: A Descent Into the Maelstrom?

I have recently been working on a law review article about work stoppages and strikes in the “new” economy. Some readers may not be aware that Section 7 of the National Labor Relations Act protects the right of both union and non-union employees to engage in concerted activities for their “mutual aid or protection.” The lead case involving non-union employee protection, Labor Board v. Washington Aluminum Co., concerned employees who walked off the job claiming their workplace was too cold (the facts arose in wintertime Baltimore). The employer fired the employees for striking, but the U.S. Supreme Court ordered the employees reinstated. While the employer could lawfully have “replaced” the employees during the walk-off, it could not lawfully fire them.

With increasing reports of strikes, see here, here, and here, generated when employers order employees to work amid real or imagined Covid-19 fears, the principles of Washington Aluminum are likely to become highly relevant. One of those principles is that fear of dangerous working conditions does not have to be “reasonable” for concerted work stoppages prompted by it to enjoy protection; the fear just has to be held in “good faith.” I’ve written a short piece on Washington Aluminum principles that is available here.

One complication in this area involves work disputes between companies and their putative independent contractors. Independent contractors who strike arguably violate antitrust law as a “conspiracy in restraint of trade.” As Professor Sanjukta Paul of Wayne State University Law School has observed, the threat of FTC prosecution of antitrust law violations committed by independent contractor-workers is real (it has been deployed, for example, against workers in the deregulated trucking industry). This is a very complicated area of law likely to cause great confusion. For example, I read today about a threatened strike by Instacart workers scheduled for this Monday (3/30/20) over hazard pay and safety gear. It would not surprise me to see FTC activity should that type of protest activity become widespread and I am quite concerned about the potentially severe liability relatively unsophisticated workers might be walking into. (I agree with what I understand Professor Paul to be arguing – it is high time that we reassess, once again, the relationship between antitrust and labor law. Do we really want to punish peaceful labor activity?)

Workers’ compensation is implicated in this maelstrom. Some front line employees are clearly signaling to their employers that they believe Covid-19 has rendered their workplaces ultrahazardous. If subsequent expert opinion and adjudication agrees with employees’ assessments, will employers forcing employees to work have engaged in “intentional” or “serious and willful” misconduct opening themselves up to payment of enhanced workers' compensation benefits or tort in the event of Covid-19 illness found to be work-related? One wonders if this complicated liability picture—in addition to “bubbling” wildcat strikes—was behind the decision of the Big 3 auto manufacturers to temporarily scale back auto production until March 30.

Michael C. Duff

March 28, 2020 | Permalink | Comments (0)

Thursday, March 26, 2020

Gig Battles Roll On in Midst of Covid-19 and Uncle Sam to the Rescue

According to the New York Times, platform companies continue to battle AB-5 in California, “investing tens of millions of dollars in a November ballot initiative that would effectively exempt them from it . . . “[and as] the companies’ legal challenges play out, the state is failing to approve many unemployment claims from drivers, potentially leaving thousands in the lurch as their earning power collapses.”

Similar scenes are playing out in New York where it has already been determined in prior rulings “that three Uber drivers were eligible for unemployment benefits, along with all ‘similarly situated’ drivers.” Dara Khosrowshahi, CEO of Uber, of course, regrets all of this, saying that the “situation certainly demonstrates the downside of attaching basic protections to W-2 employment,” and in a letter to the president “asked that any economic stimulus or coronavirus-related legislation provide “protections and benefits for independent workers,” along with “the opportunity to legally provide them with a real safety net going forward.” The hubris and irony are breathtaking, and the line I’ve set in bold reflects the disaster capitalism/shock doctrine “way”: Use the disaster to push for (in this case) “portable benefits,” a boondoggle likely to be of epic proportions.

Fortunately, Shannon Liss-Riordan, the notable scourge of platform companies’ backflipping tactics, will have none of it, and has already filed complaints seeking to force the companies to follow the state’s new law immediately, giving drivers access to unemployment benefits and sick days. As she put it, “It is very unfortunate that such a crisis may be necessary to prompt these companies into actually complying with the law and extending employment protections to their drivers.” The moral of the story may be that crises can work in more than one direction. If a company seizes on a disaster to push its agenda before the tactical ground has been properly prepared, it may provoke a response it did not anticipate. At the moment, at least, failure to comply with AB-5 makes you a lawbreaker (though the scofflaws would like you to forget it). And, if Liss-Riordan obtains a declaratory judgment and injunction quickly, the offending companies may swiftly find themselves on the precipice of being in contempt of court.

Look closely for other disaster maneuvers. Folks have asked me over the years why I’m so focused on workers’ compensation opt-out and mushrooming application of compulsory arbitration across legal regimes. It’s because this formerly-blue-collar professor knows how the game is played and who is playing it. Opt-out is a shock doctrine maneuver: the economy gets really bad, really fast (the Black Swan) and "players" start making arguments for dismantling liability. All you need is a social bankruptcy blueprint (and, as this bankruptcy teacher well knows, such blueprints are amazingly political). Once we've determined that you are a "secured" creditor and the other fellow isn't, the rest is easy. And rust never sleeps--those unsuccessfully seeking special treatment in the past will be back.

Along these lines, consider that in the new stimulus bill Gig workers’ unemployment relief appears to have been included. While this is an outcome I applaud (for the sake of workers), consider that companies that have never contributed a dime to the unemployment funds are, in effect, being publicly subsidized at a higher rate than those that did. Socialize risk. Privatize benefits. Just imagine if Uber was the last entity standing.  

Michael C. Duff

March 26, 2020 | Permalink | Comments (0)

Tuesday, March 24, 2020

Reporting to Work During Pandemic as Special Mission

I have great concern that the end of the pandemic will be rife with confusing politics. No sitting president wants a paralyzed economy leading into the election for a second term. Furthermore, that president's adversaries may be seen as having a motive for over sensationalizing the scope and depth of the emergency for political purposes (such thoughts would not be thought in normal times, but these are not normal times). As usual, workers are caught in the middle.

Potential problematic scenarios will abound. Suppose the economy is "re-opened" but employees have doubts about whether it is in fact safe to return. Or suppose the employee does in fact return and becomes sickened by coronavirus. The traditional increased-risk causation analysis would hold that coverage is not established unless the risk of obtaining the illness in the workplace exceeds the background risk of the general public (or something to that effect depending on the law of a particular state). There has been a good deal of discussion as to whether increased risk jurisdictions and/or insurance carriers should simply relax causation standards in these situations in favor of coverage where causation is at least arguable. (See here behind paywall).

Or suppose the employee can establish that the virus was contracted on the way to (or returning from) work. Normally we would say the resulting illness was not compensable by operation of the going and coming rule. But in a positional risk jurisdiction, or in an increased risk jurisdiction possessing something like the street risk rule, the situation is likely to become more complicated. In this regard, I was struck this morning by a FECA (the workers' compensation-type statute covering federal employees) memo written by the Department of Labor in connection with the garden-variety flu (I'm not sure when it was written/updated). While making clear that the flu is not automatically covered and that work causation must be established (FECA operates mainly under positional risk principles), the memo went on to state: "In the event of a pandemic situation where only certain essential personnel are required to come to work, it is conceivable that an employee's circumstances could be considered a special mission, thus bringing them under the coverage of the Act during their commute to and from the office." (The DOL has written another memo specifically addressing COVID-19 -- that memo does not seem to include the special mission language and suggests an increased risk requirement for COVID-19 coverage).  

This all makes me think of dangerous return to work scenarios. I anticipate claimants compelled to return to work may be arguing for some time that their commutes are "special missions" because the commute is not normal and exposes them to risks in excess of those to which the general public is exposed (especially in the context of scenarios in which there are societal disputes about whether continued quarantine is warranted). In general, a special mission is defined as a situation in which an employee takes an off-premises trip that would normally be outside the course of employment. Then the trip may be brought within the course of employment for any number of reasons including (for purposes of this discussion) a special inconvenience or hazard exceeding a normal commute. 

One should also bear in mind that on some accounts the flu epidemic of 1918 did not really end until 1920.

Michael C. Duff


March 24, 2020 | Permalink | Comments (0)

Saturday, March 21, 2020

Damon Silvers on Coronavirus and the Gig Economy

Damon Silvers, my classmate at the Harvard Law School a long time ago (we were 1Ls in 1992), and now Special Counsel to the AFL-CIO and professor, has a thought provoking piece up on the UCL Institute for Innovation and Public Purpose blog (via the Medium). Here is an excerpt:

In the United States, platform workers are generally not eligible for unemployment insurance. And so, what the coronavirus pandemic exposes is that: rather than gig economy jobs feeling modern, these workers are much more like dock workers or a farm labourer in the 19th century, if they are too sick to work, they don’t get paid.


Perhaps nothing is more telling in this regard than the contrast between how Uber is treating workers they admit are their employees and how they are treating their drivers. Uber employees have paid sick days and are being told to work from home. While, drivers are offered unspecified financial support if they are actually sick but are clearly expected to keep driving until they get sick.


Throughout the San Francisco Bay, the centre of the greatest accumulation of technology-related wealth and expertise in the history of the world, hundreds of thousands of people are suddenly living in a kind of Dickensian fear, the fear of no work and nothing to fall back on as the economy contracts around them.


Last week, as it became clear that we were not going to contain the coronavirus in a handful of locations in the United States, something else became clear as well. That we had designed our economy, or had allowed it to be designed, as a kind of ideal incubator of an epidemic. Because we are an economy whose health insurance systems have all been redesigned to make sure the patient pays first dollar. In our privatised health care system most health insurance plans, including those offered through the Affordable Care Act (“Obamacare”) require workers to pay an amount in health care costs before the insurance coverage begins (“deductibles”) and to pay some of the cost of each health care treatment (“co-pays”). And we are an economy where a sizable percentage of the workforce doesn’t have paid sick days. So, millions are seriously incentivised not to seek medical treatment when they are not feeling well, and to go to work sick as long as they can.


The rest of the piece us here.

I think it is fair to say that Damon and I share many views on the problems besetting the modern economy. But I also think we have some profound differences as to the solutions to those problems. But that is a long conversation for another time. It is perhaps enough to say that I have limited confidence in the long term viability of world super-states. I think something else is coming.

Michael C. Duff

March 21, 2020 | Permalink | Comments (0)