Thursday, March 12, 2020

Disasters and Fissures: Coronavirus, Google, the Unworthy Sick, and Workers’ Compensation Causation

UPDATE: They've apparently heard the complaint, as reported in Business Insider. 

Thought provoking piece in today’s The Guardian highlighting yet another dimension of the fissured workplace. If you are a “contract” worker, you might have to show up for work at the Google office during the Coronavirus. Say what?:

The day before, Google had asked all its North American employees to begin working from home due to the coronavirus – a policy that has since been expanded to the rest of its global workforce. But [Josh] Borden, a triage analyst who has worked for Google for about four years, is one of the approximately 135,000 people who make up Google’s “extended workforce”: temps and subcontractors who perform work for, but are not technically employed by, the $830bn company. And though Borden and his co-workers perform computer-based tasks that could just as easily be completed from home as those of other technical workers, Google does not allow them to access their work from home.


“The FTEs [full-time employees] almost all seem to be heeding the recommendation to work from home, while we are sitting here in the Petri dish, with the choice of not getting paid, or maybe getting sick and then putting our family and friends at risk too,” Borden said. “I’ve heard from multiple people that they feel like we’ve been forgotten and abandoned – and that our health and safety is clearly less important than the Googlers’.


“Our second-class status now has literal health implications,” he added.

If I were to turn this situation into a workers’ compensation law school essay question, I would expect some discussion of causation. The risk of contracting coronavirus might be viewed as neutral under general principles of workers’ compensation causation—neutral because the contract worker at the Google offices may have no greater risk of contracting the virus than a member of the general public. But the Petri dish analogy in the article excerpt is interesting. If the employer de facto constructs a Petri dish and then inserts (or allow to be inserted) contract employees into the dish, perhaps we shift back along towards the increased risk pole of the workers’ compensation causation continuum.

Indeed, I’m reminded of my law school days (c. 1993-1995), when I clerked for the Commonwealth of Massachusetts Department of Industrial Accidents Reviewing Board. During that stint, I became familiar with Section 28 of Chapter 152 of the Mass General Laws: “If the employee is injured by reason of the serious and willful [sic] misconduct of an employer or of any person regularly intrusted [sic] with and exercising the powers of superintendence, the amounts of compensation hereinafter provided shall be doubled.” I had a case one year involving an employer that repeatedly (and clearly knowingly) exposed its employee to mercury. Bad things happened to the employee. Section 28 was applied.

Of course, none of this matters if the worker is not an employee—he or she will not be covered by workers’ compensation. But, if you go sticking workers in Petri dishes, you might appreciate having recourse to the exclusive remedy rule.

Michael C. Duff

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