Monday, November 19, 2018

New Scholarship: Compensating Injury and Disease Caused by the "Sedentary Workplace"

           In a new article, published in the Lewis & Clark Law Review, the authors assert that employers should be liable for workers’ compensation when workers, because of their sedentary duties, sustain such injuries as heart attack, stroke, and pulmonary embolism.  The authors believe that jurisdictions which liberally construe the concept of accident (or injury) already maintain laws which accommodate recovery for such maladies, as long as expert evidence demonstrate medical causation.  The authors emphasize that making employers no-fault liable in this fashion will incentivize them to address – via providing such things as frequent breaks and “standing desks” – the growing hazard of the more sedentary workplace.  See Natalie Bucciarelli Pedersen & Lisa Eisenberg, If Sitting is the New Smoking, What does this Mean for Employers?  A Look at Potential Workers’ Compensation Claims in the Sedentary Workplace, 22 Lewis & Clark Law Review 965 (2018).

           The authors establish that the present-day workplace is indeed more sedentary than years ago.  They assert that sedentary lifestyles show a higher incidence not only of the ailments noted above, but of cardiovascular disease, cancer, and type 2 diabetes.  They argue that employers should go beyond providing wellness programs and become pro-active in encouraging on-the-job fitness regimes.  In their view, this is so because science informs us that mere exercise and healthy lifestyle outside of work, that is, the aspect of life within one’s control, is no substitute for at work activity.  They describe the energy category of “NEAT,” or nonexercise activity thermogenesis, to support the proposition that not having workers active at work in fact causes injury: “‘A body that’s sitting isn’t expending energy,’”, they explain, “‘so the signals that normally result in you moving – and which, in turn, burn calories – start to check out, molecularly bored with not being called to duty.  Meanwhile, the processes that build up fat get busier.’ …. Thus, it seems what people do in their time not devoted to exercise is quite important to maintaining their health.”  

            The authors point out that the law in a few countries has recognized this phenomenon.  For example, in Denmark, a worker now has the right to a standing desk, while the Australian and Canadian workplace safety agencies, with their “Stand Up Australia” and “Sit Kicker” initiatives, respectively, recommend that employers provide such desks and allow workers to interrupt their sitting every half hour.  The authors suggest that the OSHA general duty requirement may at some point be interpreted to oblige employers to initiate similar programs.  Some U.S. employers, meanwhile, are ahead of the curve of regulation on this point.  Allowing such innovation is not, of course, wholly altruistic.  The L.L. Bean clothing company, for its part, “has a policy of three stretch breaks a day for employees, believing that the increased production gains from the breaks make them well worth it.” 

            As for liability in workers’ compensation, the authors are well-versed with national trends, and realize that many legislatures, at the behest of business, have revolted against broad coverage of injuries and would likely do to so in the face of proposals for covering maladies sustained via sitting.  And, of course, jurisdictions which demand “unusual exertion” as part of the arising out of and/or accident test could well defeat even the suggestion that a gradual sitting injury could be compensable.  Yet, the authors argue, if employers are not no-fault liable for physical problems caused by sitting, the costs of the same are necessarily shifted to other systems, like private health insurance and Medicaid. This result is, in the authors’ view, unsatisfactory: “[P]lacing the burden for sedentary workplace harms on medical insurance undermines the core purpose of allocating the burden for workplace harms to employers: to treat them as a cost of production.”     

            The authors are correct that, in jurisdictions where the concept of injury is liberally construed, compensation systems as a matter of legal causation would potentially accommodate claims centered on a sedentary work injury.   It is when medical causation is considered that the authors’ thoughtful advocacy becomes highly problematic. Most, if not all, of the ailments which they identify are not obviously caused by work, and usually implicate pre-existing conditions and/or co-morbidities.  The causation battles which would inevitably result from frequent claims based on sedentary work make them non-cognizable from a practical point of view. 

            As for the more basic objection that one’s overall health (including the salutary effects of exercise) is largely a matter of personal responsibility, the reader will recall that the authors posit that employers not having workers active at work in fact causes injury.  That may well be, but the entire proposal, which features employers obliging workers to undertake all sorts of physical efforts during the work day, seems at once invasive of privacy and paternalistic – in the extreme – as well.  It is submitted that, whatever the gradual dangers of a sedentary job, one’s general health remains a matter of personal responsibility.

https://lawprofessors.typepad.com/workerscomplaw/2018/11/new-scholarship-compensating-injury-and-disease-caused-by-the-sedentary-workplace-.html

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