Tuesday, March 24, 2020
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