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
Thursday, December 17, 2020
I fear that very soon we may be facing vaccine injuries in connection with the dispensing of essentially experimental Covid vaccines. I certainly hope it does not happen, but experience is a cruel teacher. In addition to potential workers’ compensation coverage, there is also a federal program that covers just these types of injuries—the Countermeasures Injury Compensation Program (CICP). Unlike injuries caused by more routine vaccinations like seasonal flu, and covered by the Vaccine Injury Compensation Program, the CICP covers injuries from “countermeasures” which are defined as “a vaccination, medication, device, or other item recommended to diagnose, prevent or treat a declared pandemic, epidemic or security threat.”
Federal declarations issued by the Secretary of the U.S. Department of Health and Human Services specify the countermeasures covered by the Program, and declarations have previously been issued for medical countermeasures against COVID-19, Marburg fever, Ebola, Nerve Agents and Certain Insecticides, Zika, Pandemic Influenza, Anthrax, Acute Radiation Syndrome, Botulinum Toxin, and Smallpox. According to the Health Resources & Services Administration (HRSA—an agency of the U.S. Department of Health and Human Services) benefits include Medical Expenses, Lost Employment Income, Benefits to the Estate, and Survivor Death Benefits. I don’t know enough about the program to comment on benefit offsets and similar problems that undoubtedly arise in the interplay of multiple benefits and tort damages (and the like), though I do know that the CICP is the “payer of last resort.” I will be recommending to injured persons I may encounter that they simply file. From the perspective of protecting vulnerable workers, the more arrows in the quiver the better as far as I am concerned. We can do the math later.
Contact information for this program in addition to the website to which I have linked above:
Health Resources and Services Administration, Countermeasures Injury Compensation Program, 5600 Fishers Lane, 08N146B, Rockville, MD 20857
Michael C. Duff
Wednesday, December 16, 2020
UPDATE: Some folks are telling me that liability immunity is being pulled from the table. I hope that is true, but let's just say I'm not taking this post down and won't be holding my breath, either.
It appears that one of the most Draconian American tort immunity bills ever conceived is about to be foisted on states any minute now. (But don’t worry, it will only be in effect for a year OR until a Government bureaucrat says the emergency is over – what could go wrong?). In essence Washington/corporate-dictated tort immunity (in derogation of a historically state and local prerogative) will mean the “empty preemption” of state (and in many cases) federal liability with respect to all things Covid (and you can expect creative expansion of defenses to include a Covid connection; not unlike my time at the NLRB when every employer defense in late 2001 somehow invoked 9/11). Time does not permit me to do a line-by-line analysis of the immunity provisions. (Workers’ compensation has been completely exempted). For now I want to focus on a very concrete question. A story in today’s WorkCompCentral about California Covid-related workplace safety rules stated that (behind paywall),
Employers who don’t follow Cal/OSHA’s new rules may see escalating fines, from around $13,000 for a first violation to hundreds of thousands in penalties for willful and repeated disregard of approved safety measures.
The rules require employers to create and maintain proactive, site-specific plans to protect workers from the virus. Employers also must provide workers with face coverings and enforce social distancing policies spelled out in federal, state and local health guidelines.
According to the draft of the likely federal Covid immunity language that has been circulating, Download 2020decemberdraft immunity bill, “a coronavirus exposure action in which liability may be imposed under a standard that is less stringent than a standard of gross negligence may not be filed or maintained in any Federal, State, or Tribal court.” Sec. 11(a). Moreover, the same section “preempts and supersedes any Federal, State, or Tribal law, including statutes, regulations, rules, orders, proclamations, or standards that are enacted, promulgated, or established under common law, under which liability may be imposed in a coronavirus exposure action under a standard that is less stringent than a standard of gross negligence.” Sec. 11(d).
On the other hand excluded from the definition of “coronavirus exposure” or “coronavirus-related medical liability” actions, subject to the preemption described in the previous paragraph, is “a criminal, civil, or administrative enforcement action brought by the Federal Government or any State, local, or Tribal government.” Secs. 3(4) and 3(7).
To the extent Cal/OSHA penalties are imposed for other than “gross negligence” you might think they are spared from preemption if imposed pursuant to state “administrative enforcement action.” But, as my administrative law students over the years would tell you, administrative orders are not self-enforcing, they must be enforced by a court. So the question becomes whether an agency’s application with a court for enforcement will survive preemption under Sec. 11(a). (Buried in that question is also a thorny abstention problem since this bill badly wants to shunt ALL state liability claims into federal court rather transparently to ensure that they are summarily dismissed. See Sec. 31—will federal courts issue injunctions to suspend state court enforcement of state administrative orders?).
The argument here should be that exclusion of state enforcement actions from the definition of “coronavirus exposure” or “coronavirus-related medical liability” implicitly acknowledges that preemption applies only to individually-filed liability actions, and that California should be able to enforce its OSHA penalties in its own courts.
Michael C. Duff
Thursday, December 10, 2020
Holiday Book-Giving: Top Eight Books, 2020, for the Workers’ Compensation Professional (One Teacher’s Selections)
Here are my humble recommendations with regard to the best books for the workers’ compensation professional for 2020!
Soul Full of Coal Dust (Little Brown 2020) by journalist Chris Hamby, is the book of the year for professionals in our field. Here the hero is John Cline, a West Virginia federal Black Lung specialist who, first as a benefits counselor and then as a late-in-life law school grad, fights for pneumoconiosis victims both in court and in Congress. The story, in short: for many years lawyers defending the coal industry would, during discovery, withhold medical evidence which showed that the claimant miner had pneumoconiosis. Defense lawyers believed that such items were not discoverable, and in many cases pro se (or poorly-represented) miners would not know to ask for such items anyway. Cline and his colleagues discovered the tactic and were aggressive in changing custom, law, and practice. The author tells a good story, knowing how to keep the reader engaged.
Drake University Professor Nate Holdren has penned a revisionist history of the creation of workers’ compensation laws a century ago in Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era (Cambridge Univ. Press 2020). According to another historian of the creation, John Fabian Witt, the author “fiercely critiques the workers’ compensation reforms enacted by progressive reformers a century ago as legitimating a form of systematic labor violence.”
Dr. Richard Victor, with Scenarios for the 2030s: Threats and Opportunities for Workers’ Compensation Systems (Sedgwick Institute 2019), has authored an intriguing book seeking to predict how the socioeconomic landscape surrounding our field will look in another decade. In this current period of anxiety and angst, Victor forecasts, by coincidence, an equally unhappy set of predictions for our system. This is so as he hypothesizes a three-fold increase in the costs to employers of workers’ compensation over the next couple decades, while benefits to workers do not meaningfully increase. The author, as a solution, devotes much attention to the idea of “super carve-outs” which would cover not just collectively-bargained arrangements but other areas of employment.
Amy Aronson, who teaches at Fordham University, has published a new (and the first) biography of the lawyer and social reformer Crystal Eastman. In Crystal Eastman: A Revolutionary Life (Oxford University Press 2019), Aronson shows that Eastman’s memorable role in the Pittsburgh Survey, at the conclusion of which she published Work-Accidents and the Law (1910), was just the start of an amazing professional career.
In Hustle & Gig: Struggling and Surviving in the Gig Economy (University of Chicago Press 2019), sociologist Alexandrea Ravenelle undertakes a critical examination of work in the gig economy. She does so through interviews with workers in four different types of gig work: drivers for Uber and Lyft; “Taskers” for TaskRabbit; chefs working for the now-defunct Kitchensurfing; and Airbnb entrepreneurs. The dominant theme is that the gig economy is, for the vast majority of workers, not some utopian form of work, where individuals empower themselves to become entrepreneurs, free of onerous control by bosses, and secure a position to dictate their own destiny. Hustle & Gig is, as to workers’ compensation, a remarkable book. Among the many critiques of the gig economy, none that I know of devote as much space to the lack of work injury protection that attends gig economy jobs.
In Erin Hatton’s Coerced: Work Under Threat of Punishment (University of California Press 2020), the author, also a sociologist, examines the circumstances of four types of individuals at labor: graduate students, “workfare” workers, scholarship athletes, and prisoners. These are all types of workers who are not merely subject to control under the penalty of being fired, but under the threat of being punished. The author calls this phenomenon “status coercion.” Little discussion is found here of how injuries sustained by such individuals in the midst of their labor is handled. Still, the book is educational in prompting the reader to think outside the box and to consider, from humanitarian, ethical, and economic points of view, a very different form of labor relationship.
The issues of work, disability and the circumstances of labor in a steel mill are all central to the candid memoir Rust: A Memoir of Steel and Grit (Flatiron Books 2020), by Eleise Colette Goldbach. She treats all of these issues, front and center, in an edifying, if ultimately bleak, account of her years as a steelworker at the vast ArcelorMittal mill in Cleveland.
Speaking of bleak memoirs, in Mill Town: Reckoning with What Remains (St. Martin’s Press 2020), journalist Kerri Arsenault tells the story of a small town in Maine which has long been dominated by a paper mill believed by many to be sickening its workers and local residents. The suspected agent is dioxin, a byproduct of paper bleaching, which many say can cause cancer. The hero of the book is a town physician who crusaded for decades against the mill, seeking to publicize such things as an alarming number of childhood cancer cases.
Wednesday, December 9, 2020
A member of the press asked me today whether illness caused by an adverse reaction to an employer-required Covid-19 vaccine would be covered under workers’ compensation. Suppose, in other words, the employer says I cannot come back to work unless I receive a Covid-19 vaccine. I do as required and I become ill, suffer work incapacity, or require medical treatment because of the adverse reaction. Is expense occasioned by the adverse reaction covered under workers' compensation?
I suspect the question may have been prompted by today’s news that “Britain’s medical regulator warned Wednesday that people with a history of serious allergic reactions shouldn’t get the COVID-19 vaccine from Pfizer and BioNTech, and investigators looked into whether two reactions on the first day of the U.K.’s vaccination program were linked to the shot.”
According to Larson’s workers’ compensation treatise:
When inoculation is occasioned by the particular conditions of employment, injury resulting from the inoculation should be deemed to have occurred in the course of employment. If there is an element of actual compulsion emanating from the employer, the work connection is beyond question, as when the company requires the employee to submit to vaccination by the company’s doctor as soon as the employee is hired, or during an epidemic tells the workers that unless they are vaccinated they cannot work until the epidemic is over.
Larson’s Workers’ Compensation Law § 27.03
As authority for the proposition the treatise cites Texas Employers Ins. Ass’n. v. Mitchell, 27 S.W.2d 600 (Tex. Civ. App. 1930); Sanders v. Children’s Aid Soc’y, 238 A.D. 746, 265 N.Y.S. 698 (1933), aff’d, 262 N.Y. 655, 188 N.E. 107 (1933). Spicer Mfg. Co. v. Tucker, 127 Ohio St. 421, 188 N.E. 870 (1934). Alewine v. Tobin Quarries, 206 S.C. 103, 33 S.E.2d 81 (1945).
So the short answer to the question appears to be yes, adverse reactions from employer-required Covid-19 vaccinations are probably compensable under workers' compensation. The analysis might be complicated on causation grounds if federal, state, or local governments ordered employee inoculation -- a subject beyond the scope of this post..
Michael C. Duff
Thursday, December 3, 2020
Bipartisan Consensus?: Businesses (and Others?) May Negligently Expose You to Coronavirus with Impunity
If you work in the Gig economy, you are not (or so the Giggers contend) an employee, and are therefore not entitled to workers’ compensation (among other employee rights). The same is true if you are any other flavor of independent contractor. So – off you go to work in the intensifying pandemic. One day, your “not-employer” sends you out to clean coronavirus-infected surfaces, with no bleach and dirty rags. As a result, not only do you get sick, but anyone coming into contact with the “not cleaned” surface becomes sick.
So now I ask you—should a reasonably prudent person know that you cannot send workers out to clean surfaces with no bleach and dirty rags without risking the health and safety of both those workers and customers (and other foreseeable human beings)? And if that person nevertheless sends those workers out with no bleach and dirty rags would it be irrational for a jury drawn from the community to deem that act “wrongful.” Should a jury of our peers at least be permitted to assess the situation?
Well a bipartisan consensus (a "stimulus" bill that I think will predictably help all the wrong people) has emerged that will leave you—the sickened worker, or the customer coming in contact with the not-cleaned surface, with no remedy for your illness as a matter of law even if you could prove it was unreasonably caused by an actor not doing what a reasonably-prudent person should do to avoid making someone sick. (You probably still can bring a claim if you can prove by “clear and convincing evidence” that the person making you sick was “grossly negligent”—but you will not be able to prove this, and the bipartisan consensus knows it. This is the wholesale elimination of all Covid-related causes of action for negligently inflicted harm. Compare Brown v. Merlo, 8 Cal.3d 855 (1973) (allowing recovery under “guest statute” only for wanton and willful misconduct tantamount to elimination of negligence cause of action). According to reports,
The bicameral, bipartisan compromise would provide $908 billion in aid and also shield businesses from coronavirus lawsuits for a few months to allow states to develop their own liability reforms. It falls between Senate Majority Leader Mitch McConnell’s $500 billion proposal and Democratic legislation of about $2 trillion.
Remember this treacherous act my friends, for it is not “civilizational.” The bill not only strips historically-grounded rights it implicitly encourages states to strip such rights. I find that breathtaking. You will be told that it is no big deal. Does it really matter if the constitution is violated “just a little” (as I believe it is when you cut off all rights to a remedy for wrongfully caused physical harm) for a short period of time? I hold with this tenet:
Slight encroachments create new boundaries from which legions of power can seek new territory to capture. ‘It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.”
In the market for a bridge too far? Here it is. A Marbury v. Madison moment.
Michael C. Duff
Saturday, November 28, 2020
On November 1, Federal District Court Judge Cogan, of the Eastern District Court of New York, dismissed the public nuisance suit filed against Amazon in connection with its alleged unhealthy operation of the JFK8 Fulfillment Center in the context of Covid-19. I think I pretty accurately predicted the way the case would unfold in my blogpost on the dispute back on June 6. It seems clear that federal courts will reflexively defer to federal enforcement agencies, even if it is plain as the nose on your face that the agencies are not doing anything (or are doing very little). As the court noted, “The doctrine of primary jurisdiction seeks to maintain a proper balance between the roles of courts and administrative agencies.” The primary jurisdiction rationale is that courts should rely on “agency expertise.” The court went on to note that OSHA, “has the primary responsibility for setting and enforcing standards and providing research, information, education, and training to assure safe and healthful working conditions. OSHA has broad prosecutorial discretion to carry out its enforcement responsibilities under the Occupational Safety and Health Act . . .”
Thus far, only boilerplate; for the problem arises (as so often is the case in administrative law) when the agency is transparently not applying its expertise. Next, the decision moves into a phase of argument reducible to, just because the agency has not issued a Covid-19 standard does not mean it is not doing something; in fact, it did something when it decided to do nothing. (I sigh and recall Voltaire’s Dr. Pangloss). Next, the court reminds us that courts are not expert in workplace safety matters (see page 11 of the decision). But the question is whether a court trying to do something could do a better job than an agency ideologically committed to doing nothing. This is the elephant in the room. (I feel compelled to add that when I was a blue collar worker I was deeply skeptical about what OSHA was willing to do on its best days. I wonder how that question would be answered within the general community of workers if OSHA fines were expressed not in dollar amounts but as a percentage of the daily operating profit of the offending company. I think I know, but I apologize for digressing to the real point).
I will not go through the opinion line by line but I did want to mention for this audience that I said in my blog post of June 6: I suspect that the public nuisance claims of employees may eventually be barred by operation of the exclusive remedy rule. The court did not even go as far into the analysis as I thought it might.
First, the court said that “[b]oth plaintiffs’ concern and their risk [of being harmed by Covid] present a difference in degree, not kind, from the injury suffered by the public at large and thus is not actionable in a private action for public nuisance.” But even if a public nuisance claim were available, continued the court:
The New York Court of Appeals has not considered whether the Workers’ Compensation Law’s exclusivity provision preempts a suit for injunctive relief. But the broad language of the exclusivity provision and the trade-offs embodied in the law compel me to conclude that the Workers’ Compensation Law bars plaintiffs’ . . . claim to the extent it is based on past harm. The “Labor Law codification of the requirement to provide a safe place to work does not overrule, and indeed, is subject to the exclusivity provisions of the Workers’ Compensation Law.” . . . The exclusivity provision broadly states that the workers’ compensation scheme serves “in place of any other liability whatsoever” for an employer to an employee . . . It is difficult to imagine a broader phrase than “any other liability whatsoever.” If “liability” was not intended to include injunctive relief, as plaintiffs argue, then the statute easily could have substituted that word with “monetary damages,” “payment of compensation” or some other phrase. As plaintiffs note, the provision also discusses “damages, contribution or indemnity” and “compensation.” But the statute uses the broad word “liability” within an even broader phrase, and so I must conclude that it was intended to cover suits for injunctive relief in addition to suits for damages. This reading is further supported by the nature of the trade-offs embodied in the law. “Fixed compensation is guaranteed to the injured employee regardless of fault and in exchange for reducing the costs and risks of litigation to the parties.” . . . In exchange for the “security” of receiving fixed benefits, “the employee has been asked to pay a price in the form of the loss of his common-law right to sue his employer in tort.” . . . The purpose of the law therefore is not just to provide a mechanism for compensation, but also to protect employers from suit . . . Allowing plaintiffs to avoid preemption by seeking only injunctive relief would thwart the purposes of the statute and the trade-offs embodied in it.
One might criticize the federal court’s sojourn into New York state law to answer an undecided question (under state law) once it had reached an adequate ground of decision on federal primary jurisdiction. It is also curious why the court considered the question of whether public nuisance claims are subject to workers’ compensation exclusivity. After all, the court concluded there was no public nuisance. Why go further? But then, after going further, the court does not really address the critical question. As the court observes, the workers’ compensation scheme serves “in place of any other liability whatsoever” for an employer to an employee. The question is whether legislatures ever considered imposition of injunctive relief as a “liability” to which workers’ compensation exclusivity applies. As the decision implicitly acknowledges, plausible textualist arguments work both ways, and it seems to me resort to deep legislative history is unavoidable. I do not think you could find such history discussing the application of exclusive remedy to public nuisance, and I have discussed elsewhere the prickly doctrinal problems in trying to do so (see also here at Section 5.3). In any event, you do not have to reach that question if public nuisance cannot be established, so I am not sure why the court did. But if a court were to find that the harm, or risk of increased harm, or fear of harm or risk of increased harm, suffered by plaintiffs exceeded that suffered by the general public so much that it became a different type of harm, you could have a public nuisance. In that case, the question of conflict with exclusivity would have to be much more carefully considered.
The plaintiffs have appealed the case to the Second Circuit. My guess is that, given the new political dynamics, the Circuit will uphold on the primary jurisdiction question and find ruling on the state questions “unnecessary.”
Michael C. Duff
Thursday, November 19, 2020
A frozen yogurt dealer in Durango, Colorado offered customers discounts for not wearing masks. Someone in town thereafter apparently got upset and busted out the dealer’s front window. He, in response, apparently affixed a sign to his establishment: “I shoot to kill.” As an aside, workers work in that shop.
According to the Iowa Capital Dispatch, “[a] wrongful death lawsuit [against Tyson Foods] tied to COVID-19 infections in a Waterloo pork processing plant alleges that during the initial stages the pandemic,”
In mid-April, around the time Black Hawk County Sherriff Tony Thompson visited the plant and reported the working conditions there “shook [him] to the core,” plant manager Tom Hart organized a cash-buy-in, winner-take-all, betting pool for supervisors and managers to wager how many plant employees would test positive for COVID-19.
John Casey, an upper-level manager at the plant, is alleged to have explicitly directed supervisors to ignore symptoms of COVID-19, telling them to show up to work even if they were exhibiting symptoms of the virus. Casey reportedly referred to COVID-19 as the “glorified flu” and told workers not to worry about it because “it’s not a big deal” and “everyone is going to get it.” On one occasion, Casey intercepted a sick supervisor who was on his way to be tested and ordered him to get back to work, saying, “We all have symptoms — you have a job to do.” After one employee vomited on the production line, managers reportedly allowed the man to continue working and then return to work the next day.
In late March or early April, as the pandemic spread across Iowa, managers at the Waterloo plant reportedly began avoiding the plant floor for fear of contracting the virus. As a result, they increasingly delegated managerial authority and responsibilities to low-level supervisors who had no management training or experience. The supervisors did not require truck drivers and subcontractors to have their temperatures checked before entering the plant.
In March and April, plant supervisors falsely denied the existence of any confirmed cases or positive tests for COVID-19 within the plant, and allegedly told workers they had a responsibility to keep working to ensure Americans didn’t go hungry as the result of a shutdown.
Tyson paid out $500 “thank you bonuses” to employees who turned up for every scheduled shift for three months — a policy decision that allegedly incentivized sick workers to continue reporting for work.
Tyson executives allegedly lobbied Iowa Gov. Kim Reynolds for COVID-19 liability protections that would shield the company from lawsuits, and successfully lobbied the governor to declare that only the state government, not local governments, had the authority to close businesses in response to the pandemic.
The company vigorously disputes the allegations. It has raised a Defense Production Act defense that should not succeed (but provided a basis for the company to remove the case to federal court). But Iowa passed a civil immunity law last June that “covers businesses that include meatpacking plants, hospitals and nursing homes. It limits suits by employees, customers and family members to cases involving coronavirus-related hospitalizations or deaths. They can also sue if they can prove a business owner intended to make people sick.” Colorado rejected such a law last summer, but a number of states have enacted them. (We’ll see if those “shields” stay in place once the body politic has a better idea of where the costs of illness have been shifted).
How do I like the Iowa wrongful death suit? Technically, I think employees intentionally injured by their employers are not covered by the exclusive remedy rule of the Iowa Workers’ Compensation Act. Brcka v. St. Paul Travelers Companies, Inc., 366 F.Supp. 2d 850 (S.D. Iowa 2005). (For a discussion of the difficulties workers face proving causation in Covid-related workers' compensation claims see here). On the one hand, I found an Iowa case this morning that somewhat incredibly held that the exclusive remedy rule applied in the case of a supervisor who killed an employee by punching him in the chest after becoming angered that the employee had revealed alleged sexual indiscretions between the supervisor and a co-employee of the deceased employee. Estate of Harris v. Papa John Pizza, 679 N.W.2d 673 (Iowa 2004). Technically, the deceased employee had consented to the “chest shot,” but how in the world could a nineteen year-old employee in such a power dynamic imbalance effectively have consented? So, no, I do not like the idea of these Iowa wrongful death claimants being caught up in the murky world of “intent” and "wantonness/willfulness" based on the little I have seen of Iowa law. And, of course, just because you "escape" workers' compensation exclusive remedy does not mean you will escape the Iowa civil immunity law.
The point? To be an “ordinary,” little-person worker in the employment jungle that has been emerging over the last two decades is generally a very dangerous thing (regardless macropolitical events on the national stage). To be an ordinary worker in the land of Covid, without realistic hope of legal or administrative remedy, is some significant order of magnitude more dangerous. My boss invites customers not to wear masks and takes bets on whether I will survive. Would any rational person enter into this kind of social contract? Do not laugh at me when I invoke the Constitution. This is simply appalling.
Michael C. Duff
Tuesday, November 17, 2020
I have arrived at the point in my torts course when we discuss the distinction between “employees” and “independent contractors.” The first thing I will be asking my students is what happens if a California Uber driver negligently, grossly-negligently, or even intentionally runs into their car. By this point in the course they have a working understanding of principles of vicarious liability, so they will tell me they would sue both the Uber driver and Uber itself. I’ll explain that deregulating the rideshare sector in California, after an unprecedented 200 million dollar corporate campaign (ultimately financed by venture capitalists), means not only that a broad swath of drivers is not covered by employee statutes but also that tort liability has been severely compromised – which sounds like a great idea until someone you happen to know has been rendered quadriplegic by an assetless Uber driver. I will explain that under Restatement agency principles a “principal” is almost never liable for the torts of its “independent contractor.” (Though I suspect that the Gig economy will now force more and more exceptions to the rule). I will explain that they will have a lot less writing to do on their torts final examination if I give them a fact pattern that has an Uber driver slamming into another driver. They may be able to argue that the hypothetical plaintiff would not pursue the claim because the negligent driver will not have pockets deep enough to finance the litigation. I might let them get away with this analysis: no need to discuss pesky issues of respondeat superior, duty, breach, causation, and harm. No need to discuss compensatory damages. Perhaps they could discuss cost-shifting for extra credit (after all, someone will pay – a constant refrain in my torts class).
When discussing the Proposition 22 development in my workers’ compensation course next semester, I will explain distinctions between the different employee tests around the country and point out that there is no reason to think that corporate deregulation campaigns will stop in California, or with any particular job function (why stop at drivers?), or with any particular body of law (why not include workers’ compensation?). How much corporate money would it take, for example, to engineer a campaign to classify half the workforces in Oklahoma or Tennessee as non-employees? How much corporate money would it take to persuade voters in Indiana that workers’ compensation is “so 20th century.” (No need for pesky workers’ compensation insurance because there is nothing to insure: no carriers, no lawyers, no workers’ compensation boards). Much less than 200 million dollars I would imagine. You really don’t have to be a weatherman to know which way the wind is blowing (everyone always complains about the weather but nobody does anything about it!). Just keep your eye on the ball as you see some of the chief Gig-hustlers scurrying over to the Biden transition team. Of course, we all know where this ends – the law of liability-imposing agency has its roots in the Roman law of two millennia ago, for God’s sake. And for all the known reasons (your liberty is limited by my security). The horrific “accident” that is a bridge too far always comes, but what a tragedy that we must (apparently) fight all these battles again. And some will claim they were not warned.
Michael C. Duff
Friday, November 13, 2020
Kentucky Supreme Court Upholds Governor's Emergency Covid Executive Actions Including Creation of Workers' Compensation Presumptions
WorkCompCentral has a good story here. (behind a paywall).
The “brisk” 92-page opinion is reducible for my purposes to two propositions. First, the executive generically has broad emergency powers. Second, under Kentucky law the legislature has specifically delegated the executive broad emergency powers.
The delegation portion of the opinion may not stand as the Governor's foes have vowed to effectively strip the delegation by legislation. The question of the limits of Executive Orders/Unilateral Action would be more intellectually interesting if it arose in a context other than a pandemic-level emergency. It is hard to say what diminished level of emergency would trigger separation of powers pushback by state courts. Under federal law, of course, the U.S. Supreme Court said the Korean War wasn’t enough of an emergency to justify Harry Truman’s seizure of the steel mills (which, of course, is distinguishable because it involved the unambiguous deprivation of private property).
I suspect that many state courts will react similarly to Kentucky in concluding that Covid is enough of an emergency for the executive to act unilaterally in certain traditionally legislative areas without legislation. And, in the case of employers'/carriers' liberty/property 14th amendment challenges focused on workers' compensation Covid presumptions established by executive order, I suspect the federal courts would apply deferential rational basis review to executive actions. As we know, this is the traditional "police power" mode of judicial review by federal courts of most state workers’ compensation legislation, which is deemed historically an exclusive matter of state law. I would expect the federal courts to have a similar attitude concerning all state workers' compensation law, whether the product of legislation or executive action. (I don't always agree with this reflexive approach, but it is undeniably customary). Obviously, this is just a surmise, and in the new 6-3 reality at the U.S. Supreme Court I'll be betting my primary residence on nothing.
Michael C. Duff
Sunday, November 8, 2020
I was pleased to participate in this panel back on October 27. I actually snuck the phrase "bursting bubble presumption" into the conversation. I'm warming up for taking over my law school's Evidence course next semester (for the second time). Here's the Ametros website summary:
To learn how the pandemic has disrupted workers’ compensation, we have presented webinars with regulators, physicians, Administrative Law Judges and pharmacy experts. In this webinar recording we are featuring what the academic legal community is thinking. In this webinar discussion, two distinguished law professors will share their views.
Joining Paul H. Sighinolfi, Ametros' Senior Managing Director will be Professors Michael Duff and John Lazzara. Professor Duff is a graduate of Harvard Law School, a prolific writer, including a text on workers’ compensation, and commentator. He teaches at the University of Wyoming Law School. Judge Lazzara distinguished himself as a former Judge of Compensation Claims in Florida. He was a founding member of The National Association of Workers’ Compensation Judiciary where he was elected to the Board and served as president. He now teaches as an Adjunct Professor at the Florida State University College of Law.
The panel discusses:
Efforts states have taken to adjust workers compensation to the COVID-19 pandemic including legislative, regulatory, and executive actions introducing compensability presumptions into the law
What is a presumption, how do they work, and why should they apply to certain categories of workers and not others?
Should there be a more comprehensive national disability option addressing incapacity caused by a virus?
The link to the video is here.
Michael C. Duff
Friday, November 6, 2020
NASI's annual "costs and benefits report" is just out and is updated to include 2018 data (the most recent available). Yours truly and Pennsylvania Workers' Compensation Judge David B. Torrey--co-editors of this blog--are members of NASI's workers' compensation data panel, which advises NASI policy analysts tasked with creating the report. From the summary:
The 23rd annual report produced by the Academy on Workers' Compensation: Benefits, Costs, and Coverage (2018 Data) provides the only comprehensive data on workers' compensation benefits, coverage, and employer costs for the nation, the states, the District of Columbia, and federal programs. Drawing on a unique combination of data from state workers’ compensation agencies, A.M. Best, and the National Council on Compensation Insurance, the report is guided by a Study Panel of experts with diverse research, policy, and practice experience. While trends in this five-year study period (2014-2018) largely continue those presented in the past few reports, expanded discussions about who pays for workers’ compensation, which similar programs might belong in future analyses, and other social insurance and safety-net programs that complement workers’ compensation protections, offer new insights and timely information in the context of the current COVID-19 pandemic.
The Report is here.
Michael C. Duff
Sunday, October 11, 2020
One of the more interesting fact scenarios playing out in recent months centers on the scope of workers’ compensation exclusivity: an employee becomes exposed to coronavirus but does not herself become disabled by Covid-19. Instead, she carries the disease home and exposes certain others in her household to the virus, and one or more of those others develops Covid-19. The situation is analogous to the employee who becomes exposed to asbestos at work, does not herself develop the signature disease of mesothelioma, but someone else in the household does develop that disease. While I have no empirical data on the frequency of these kinds of Covid-19 cases, I am hearing and reading that they are being litigated.
The Larson’s treatise terms these “independent breach” claims (§101.03): a dependent spouse or parent brings an action against the employee’s employer suing not derivatively, in connection with the employer’s breach of a duty to the employee (a negligence breach clearly subsumed by exclusivity), but independently in connection with a wrong committed directly against the spouse or parent. This is not, for example, a meatpacking plant worker’s wrongful death suit filed by a surviving family member eligible for workers’ compensation benefits. That type of suit is preempted by workers’ compensation exclusivity (at least in the absence of intentional/willful/wanton/malicious conduct, where the action may theoretically be available depending on the state in question). In an independent breach claim the employee “bringing home” asbestos (or Covid 19) is simply a conduit for transmission of the disease agent. For this reason it should also not matter if a state bars workers’ compensation for infectious diseases since the claim does not arise under workers’ compensation.
I think the argument that employers in these situations owe an independent duty of reasonable care to protect foreseeable household family members from harm is substantial, and the handful of reported decisions I have found that address the question are in accord with my intuition. See Simpkins v. CSX Corp., 401 Ill. App.3d 1109, 929 N.E.2d 1257, 343 Ill. Dec. 178 (2010); Anderson v. A.J. Friedman Supply Co., Inc., 416 N.J. Super. 46, 3 A.3d 545 (2010); Kesner v. Superior Ct., 1 Cal. 5th 1132 (Dec. 1, 2016); Quisenberry v. Record No. 171494 Huntington Ingalls, Inc., 818 S.E.2d 805 (Va. 2018) (For a robust general counterargument that exclusivity should apply see the dissenting opinion in Quisenberry).
Let’s consider the implications if this kind of broad, independent MacPherson v Buick Motor Co. duty applies to this claim. Plaintiffs no doubt get an easier road to a jury. But causation challenges remain formidable. In the negligence regime a plaintiff must establish actual and proximate causation. Proximate causation—usually evaluated by asking whether a harm was foreseeable or was within the scope of the negligently created risk (the “risk rule”)—will likely be easy to establish. But actual causation is always challenging when there are multiple possible causes of injury (or illness). The modern tort trend is to not rigidly apply the “but for” causation test when there are multiple causes that have caused a harm. Suppose that both workplace and outside-of-workplace exposures have caused the employee’s family member to contract Covid 19. Strict application of but for causation would defeat the family member’s claim because “but for” the workplace exposure the employee would still have contracted the disease. Under the Restatement Third of Torts, Section 27, however, the workplace exposure could be an actual cause of the Covid-19 if the workplace exposure by itself was sufficient to cause the disease.
This brings me to the main problem I want to discuss. Suppose an employer’s employee is stricken with Covid-19 and found eligible for workers’ compensation through operation of a Covid presumption. Suppose further that a member of the employee’s family is thereafter stricken by Covid-19. Is the family member bound by exclusivity in this type of situation? Assuming that the family member is able to pursue a tort claim on an independent breach theory, does a finding of causation in the workers’ compensation claim somehow estop the employer/insurance carrier from contesting causation in the subsequent independent breach tort claim?
The first question seems much more difficult than the independent breach claims presented in the asbestos cases. In a very real way the family member’s illness arose out of the employee’s injury or illness and the agent of disease had its origin in a sick employee who was sickened at work. It strikes me as a kind of “ticking timebomb” case in which the an employee’s injury has its causal origin in work which does not manifest in the workplace. (The “timebomb” is placed on the employee in the workplace but “goes off” in her living room). The twist is that the family member is arguably not in privity with the employer in the manner contemplated by workers’ compensation statutes. If the courts apply exclusivity in these circumstances, they will have to explain the precise causal mechanisms at play, and my instinct is that many of them will not extend exclusivity this far on policy grounds.
The second question requires considering whether the causation issue in sequential workers’ compensation and torts cases are sufficiently similar to prevent “re-litigation” of causation by the employer in the second (independent breach) proceeding. The causation standards governing workers’ compensation and negligence obviously differ. A finding of workers’ compensation causation—say, whether a workplace increased the risk of contracting an injury or disease and whether medical causation has been established—is very different than what I wrote below describing causation in a negligence/torts claim. In the words of the Restatement 2nd of Judgments, § 83, comment g:
Since the tribunal's authority is delimited in substantive legal terms, the tribunal ordinarily lacks authority to adjudicate claims arising out of the transaction in question but based upon other substantive legal premises. Thus, a workers’ compensation commission usually lacks authority to consider claims for punitive damages for injuries intentionally inflicted on an employee in the course of employment; an employment discrimination agency may lack authority to consider claims based on breach of contract. These limitations on authority of the tribunal should carry corresponding limitations on the scope of “claim” for purposes of the rule of claim preclusion. (Emphasis supplied)
In other words, a workers’ compensation agency cannot make binding findings on tort causation. Estoppel notions seem especially weak in the context of presumptions, which by definition prevent full litigation of (even) workers’ compensation causation issues.
Employers and carriers may have valid reasons to attempt to rebut workers’ compensation Covid-19 causation presumptions, but I do not think fear of defensive causation estoppel in subsequent independent breach tort litigation is realistic.
Michael C. Duff
Monday, October 5, 2020
From the front material:
Work Law Under COVID-19
This book is a first stab at explaining the ways that COVID-19 has thus far affected work law – mostly in the U.S. with a comparative look at few other countries. The book is a work in progress. Just as the pandemic is ongoing, we are adding and updating contributions to this book as we go as events and information change. To that end, feel free to email comments and suggestions – including what we missed and what we got wrong.
This online collection is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.
Why read this book
This book is for you if you want to know more about COVID-19’s effect on work law, but don’t have the training, time, or patience to read the law itself or traditional legal commentary. As a result, the contributions are relatively short, but with links to cited primary and secondary sources if you want to dig deeper. The focus is mostly on the United States with a few cross-country comparisons.
Michael C. Duff is a Professor of Law at the University of Wyoming.
Anthony Forsyth is a Professor in the Graduate School of Business and Law at RMIT University.
Jeffrey M. Hirsch is the Geneva Yeargan Rand Distinguished Professor of Law at the University of North Carolina.
Sachin S. Pandya is a Professor of Law at the University of Connecticut.
Elizabeth Pendo is the Joseph J. Simeone Professor of Law at Saint Louis University.
Elizabeth Tippett is an Associate Professor of Law at the University of Oregon.
Deborah Widiss is a Professor of Law at Indiana University.
Ruqaiijah Yearby is a Professor of Law at Saint Louis University.
The link is here.
Michael C. Duff
Monday, August 17, 2020
In an important white paper, published by Sedgwick, the authors review the recent popularity of presumptions (including those for COVID-19) in workers’ compensation laws. David Langham & Chris Mandel, American Workers’ Compensation – A Study in Disparities and the Expanded Use of Presumptions (Sedgwick Institute, July 2020), https://www.sedgwick.com/assets/uploads/documents/Sedgwick-Institute_Workers-Comp_7.8.20-1.pdf.
The authors first provide a short history of workers’ compensation from its inception. They note, among other things, that in some jurisdictions, laws provided for presumptions of compensability, giving the injured worker the “benefit of the doubt” in ambiguous cases that the injury arose out of the employment. These types of laws (never the rule in my state, Pennsylvania), have, over the recent decades, been repealed, with most jurisdictions currently obliging the injured worker to prove his or her claim as in a tort case.
Now, however, a narrower type of presumption has developed, legislated typically at the behest of certain lobbies (firefighters seeking cancer presumptions; police officers seeking mental trauma presumptions). The authors, perhaps with provocative intent, describe such presumptions as “discriminating” and reflecting “disparate treatment by government.”
The authors discuss, accurately, how the development of these laws has laid the groundwork for executive and legislative action in the form of presumptions of causation in the realm of worker infection by COVID-19. The authors analyze the likely cost increases to the system brought about by the virus, and the application of presumptions, and caution against their indiscriminate use in this and other contexts. In the authors’ view, the overuse of presumptions unfairly upsets the bargain or compromise which is the basis of the system. This is particularly so, they suggest, because the etiology of non-occupation-specific diseases (and psychic injuries, for that matter) is still not well understood.
With regard to costs, the authors seem to acknowledge that the true total costs of COVID-19 in the workplace, and the effect of the presumptions enacted as a consequence, is difficult to estimate. Some of the cases will feature modest costs while others will exhibit serious expenditures. Still, the authors posit that, whatever the total costs, a particular jurisdiction’s adoption of a COVID-19 presumption may induce businesses to relocate to another state, or offshore its operations altogether. Notably, the authors reject the idea that such a phenomenon reflects some “race to the bottom” but, instead, characterize the same as a legitimate attempt by such businesses to avoid increased costs – particularly medical expenditures.
It is difficult to argue with many of the points made by the authors. Still, it is important to remember that occupational disease presumptions have long been part of workers’ compensation laws. A list of diseases, paired with occupations in which incurrence was thought to be a special risk, was a feature of the second British law of 1907. E.P. Hennock, The Origin of the Welfare State in England and Germany, 1850-1914: Social Policies Compared (Cambridge University Press. 2007). Pennsylvania, notably, was to emulate that approach in its enactments of 1937 and 1939.
It is also important to remember that not all presumptions are created equal. For example, in Pennsylvania, the Section 301(e) presumption enjoyed by an occupational disease victim “drops out” as soon as the employer presents evidence of an alternate cause for the disease. And, when it does so, the injured worker once again carries the burden of proof on causation. Thus, to a certain extent, the presumption is a paper tiger. (It may be that the dynamic is different under Act 46 of 2011 (cancer in firefighters)).
In any event, in Pennsylvania we know from decades of workers’ compensation black lung litigation that no lawyer would ever rely on the presumption alone; he or she would always develop expert evidence on the causation issue.
Finally, not all presumptions are created equal for another reason, and in an aspect which the authors, in their brief against this legal device, do not discuss. In this regard, one presumption which has gained popularity works in employers’ favor. That device is the presumption (rebuttable) that when, in the wake of an injury, the worker is found to have any level of marijuana metabolites in his or her blood, intoxication from that agent is the cause of the accident. Arkansas and Florida seem to maintain such laws; a leading case is Brinson v. Hospital Housekeeping Services, LLC, 263 So.3d 106 (Fl. Ct. App. 2018) (housekeeper, at end of shift, rushing to report an emergency, who slipped and fell, dislocating shoulder, barred from recovery when it was found that she had THC in her blood).
This type of presumption, which operates free of any intoxication “threshold,” does not seem to be supported by scientific evidence and, when coupled with mandatory drug-test rules, no doubt suppresses the prosecution and payment of many claims where drug use had nothing to do with the accident.
Though this type of presumption (still a minority approach) is not noted by the authors, they would be unapologetic, one senses, about such results. In this regard, a well-known social science dictum is that mass justice programs can, at times, work inequities. Here, the authors describe that phenomenon more poetically: “It is … generally accepted that workers’ compensation systems are imperfect…. The systems operate on a macro analysis of compromise. As a result, there are individual outlier examples in which the results are less than ideal. The systems are imperfect, drawn by people who are imperfect, and therefore necessarily imperfect results will ensue.”
Tuesday, August 11, 2020
I am very clear on why certain people do not “understand” COVID-19 workers’ compensation causation presumptions. There is that very old (gendered) Upton Sinclair saw: “It is difficult to get a man to understand something when his salary depends upon his not understanding it.” Insurance carriers report that expanded coverage occasioned by COVID-19 presumptions could result in increased business costs spread across an entire industry. Yes – some would argue that is precisely what we want to happen. Some say, “but this is not what we have done in the past.” That was exactly the reaction of many employers to the established negligence order when workers’ compensation was proposed in the early 20th century. The whole idea of strict liability (or something like it) for workplace injury was simultaneously preposterous and deemed necessary (considering the alternative of widespread enactment of liability statutes – organized labor’s preferred solution to the work-injury epidemic). It was not until 1850 that we were even clear that the plaintiff had the burden of proof in an injury case to show that a defendant failed to act as a reasonably prudent person under the circumstances. Before then, defendants had the burden of proving their actions conformed with a standard of care (think about running a business in that world and you will understand why the rule had to be changed to accommodate industrialism). The point is that law is changing all the time and those changes are measured against constitutional baselines.
It is also interesting to note how some observers can simultaneously be hostile to COVID-19 workers’ compensation causation presumptions but be uncritically receptive to COVID-19 civil immunity for business. Surely those observers realize that imposing liability on actors only in cases of gross negligence proven by clear and convincing evidence acts as an irrebuttable presumption against negligence. (Irrebuttable presumptions are in reality rules of law—so these are rules extinguishing ordinary negligence).
For many years I have been an ardent defender of state-based workers’ compensation. I have defended the system not because I think it always works well—I think no such thing. Rather, as a substitute for negligence, I have seen state workers’ compensation as rights-based and policed by principles of federalism, at least in theory. I have often seen federal social insurance, on the other hand (and very roughly speaking), as discretionary. But seeing how quickly many state legislatures have been willing to throw negligence “under the bus” in the current crisis, my back-of-the envelope heuristics may have been jolted. As I opined today in Bloomberg Law (in so many words), you do not cavalierly throw a body of law away because rights afforded under it become expensive or inconvenient. Rules afford rights as well as defenses. If the rule of law is not enforceable against the wealthy and powerful, it does not mean much.
Michael C. Duff
Friday, July 31, 2020
Departing sharply from notions of “liability immunity” member scholars at the Center for Progressive Reform (CPR)—including yours truly—have offered in a new report sustained argument for establishment of a Private Right of Action under the OSH Act. Although not directly related to workers’ compensation, occupational safety regulation and enforcement, like tort and workers’ compensation, proceed from the proposition that one of the first duties of government is to protect its citizens, including those who happen to be working. Sometimes, however, government must be “poked” to remind it of this duty. If a government agency lacks the resources or political will to accomplish its statutory mandate, “private attorneys general” may be able to lend assistance. It is worth noting that the House of Representatives passed a bill last February—the Protecting the Right to Organize Act (the “PRO Act”)—that would amend labor law by allowing a private right of action under the National Labor Relations Act. Originally, I did not think the PRO Act had much chance of passing the Senate. But the political dynamics are changing dramatically and rapidly. I suspect the Senate may feel very different next January. Given the obvious ineptitude of OSHA during the pandemic, we think the potential for our recommendation receiving serious consideration by policy makers is high. From the CPR Report:
As the 50th anniversaries of the Occupational Safety and Health Act (OSH Act) and OSHA approach in December 2020 and April 2021, respectively, it is time to address the law’s and agency’s shortcomings and chart a course of action to revolutionize worker health and safety for the next 50 years.
Fixing the current system requires an updated and vastly improved labor law that empowers workers to speak up about health and safety hazards, rather than risk their lives out of fear of losing employment and pay. It also requires that workers be empowered to fight back when government agencies fail to enforce safety and health requirements. Our vision is to guarantee all workers a private right of action to enforce violations of the OSH Act, coupled with incentives for speaking up and strong whistleblower protections to ensure workers can and will utilize their new authority. In addition, this private right of action should cover the millions of workers who are currently unprotected by OSHA, including misclassified independent contractors, agricultural workers, and public sector workers in states under federal OSHA’s jurisdiction. Congress should also ban mandatory arbitration as a condition of employment, since the purpose of such arbitration requirements is to disempower workers by denying access to the courts. Finally, Congress should require that all states and territories that operate their own occupational safety and health programs in lieu of federal OSHA incorporate a private right of action into their state plans.
Promoting laws and regulations that safeguard workers physically and financially and that rebalance the power dynamic between employers and workers is a necessary and vital step in building strong, resilient families and communities. Providing a private right of action, a common tool in a variety of other laws, is a long overdue measure that would empower workers to ensure safer and healthier workplaces when the agency tasked with protecting them is unwilling or unable to do so. Engaging workers more meaningfully in the enforcement of health and safety standards will not only improve their immediate conditions but also disrupt the cycle of worker disempowerment that contributes to unsafe and unhealthy working conditions, giving workers a voice to achieve lasting improvements in the workplace.
The rest of the report is here.
Michael C. Duff
Thursday, July 30, 2020
Senator Zorn, the Michigan state republican senator who allegedly wore a protective face mask on the Michigan Senate floor depicting a design similar to the battle flag of the Confederate States of America, has proposed his own type of workers’ compensation COVID-19 presumption—an irrebuttable presumption against coverage. (Maybe you think the Confederate Flag stuff is irrelevant but I will get back to that shortly). First the bill, Michigan Senate Bill 1019:
(1) Notwithstanding any other provision of this act, and except as otherwise provided in subsection (2), an employee who receives a personal injury arising out of and in the course of employment by an employer who is subject to this act at the time of the injury is not eligible to be paid compensation as otherwise provided for in this act if all of the following conditions are met:
(a) The personal injury was the result of the employee's exposure to COVID-19.
(b) The employee was exposed to COVID-19 during the COVID-19 emergency.
(c) The employer was in compliance with a federal or state statute or regulation, executive order, or public health guidance that was relevant to, and applicable at the time of, the employee's exposure to COVID-19. If more than 1 relevant public health guidance applied to the employer at the time of the exposure, the requirements of this subdivision are satisfied if the employer was in compliance with any relevant and applicable public health guidance.
(2) Subsection (1) does not apply to a personal injury that was the result of an intentional tort as described in section 131.
(3) This section does not do any of the following:
(a) Create, recognize, or ratify a claim or cause of action of any kind.
(b) Eliminate a required element of a claim of any kind.
(c) Amend, repeal, alter, or affect any other immunity or limitation of liability.
(4) This section applies retroactively to a personal injury that occurs after March 11, 2020.
(5) As used in this section:
(a) "COVID-19" means the novel coronavirus identified as SARS-CoV-2 or a virus mutating from SARS- CoV-2.
(b) "COVID-19 emergency" means the state of emergency declared under 1945 PA 302, MCL 10.31 to 10.33, on March 10, 2020, and any subsequent orders or amendments to those orders.
(c) "Public health guidance" means written guidance related to COVID-19 issued by the Centers for Disease Control and Prevention or the Occupational Safety and Health Administration of the United States Department of Labor, or by the department of health and human services or another agency of this state.
So if an employer is in compliance with any “public health guidance” (and how could it not be given the weakness of the guidance we have seen across the political landscape) an employee is “not eligible to be paid compensation” for any COVID-19 claim that does not rise to the level of an intentional tort. This formulation is, of course, rife with notions of “fault”: the employer was not at fault because it was attempting in good faith to comply with public health compliance. This sounds like a negligence defense which, as you know dear readers, is irrelevant under “classical” workers’ compensation doctrine.
Back to the Confederate Flag. I am not going to bother linking you to the variety of public health authorities pointing out the racial disparities with respect to who has been able to work from home and who has not. I cannot believe that the author of this Michigan bill could have much concern for the workers most likely to be exposed to the coronavirus. I suspect you can complete my syllogism.
If this and the McConnell/Cornyn immunity bill were to become law, workers would—as a matter of law—have no cause of action for wrongful contraction of COVID-19. They may have access to health insurance depending on their plans’ coverage. And they may have access to private disability plans (though under ERISA employers may terminate employee welfare benefit plans at any time—a point no one seems to want to believe). Social Security Disability covers only total disability—and even then there is a five-month waiting period and it is difficult to qualify. Bottom line—workers are dancing on a razor’s edge. I find it difficult to believe this could become law, but it does shine light on why the McConnell/Cornyn bill repeatedly recites that it would not preempt stricter state immunity. “Nothing in this subtitle shall be construed to affect the applicability of any provision of any Federal, State, or Tribal law that imposes stricter limits on damages or liabilities for personal injury caused by, arising out of, or related to an actual, alleged, feared, or potential for exposure to coronavirus, or otherwise affords greater protection to defendants in any coronavirus exposure action than are provided in this subtitle.” Sec. 121(b)(2). As bad as McConnell/Cornyn is, it would not set a floor, which is a scary thought.
Michael C. Duff