Friday, July 10, 2020

Is a New Extrahazardous Economy Upon Us? May States Choke Off All Worker Injury Rights in Reaction to It?

From the beginning of the pandemic I have harbored an intuition that the most difficult COVID-19 legal issues would manifest not during lockdown but while the economy was reopening. My suspicion has been that at some point it would be declared that the cost of remaining closed was simply too high and that workers needed to charge back into the economy “come what may.” Whether this happened before the first wave completely ended or after the second wave started (or at some point in between) the dynamic was bound to emerge. And, as in war, it is often the case that those yelling loudest for engagement with the enemy stand farthest in the rear.

Now we are on the brink of the real “action”—people will be going to work at precisely the time when the virus is peaking, an almost incredible development. It seems to me that the entire working terrain has become presumptively “extrahazardous,” and readers may recall that workers’ compensation at its birth applied only to extrahazardous employment (indeed, in Wyoming it still technically does). Despite concerns that the U.S. Supreme Court might strike down early versions of workers’ compensation, it was broadly assumed the Court would not do so in the case of the extrahazardous employment that was a feature of many early 20th century workplaces—such regulation simply seemed too close to traditional state police powers to be subject to federal supervision. Perhaps it will be generally true again that courts will grant wide latitude to legislatures grappling with the extraordinary and extrahazardous work of the COVID era. But how much latitude? And why might boundaries be tested?  

From the perspective of workers, in the “best” case scenarios in which they may contract COVID-19 in the workplace, workers’ compensation may broadly cover first responders and essential workers, and tort may cover workers if employers intentionally, maliciously, wantonly, or willfully (or some combination thereof) cause them to die or become ill, which will obviously be a rare occurrence. But in the worst case scenarios, workers’ illness—even illness negligently caused by employers—may be without legal remedy. Both workers’ compensation and tort claims may be denied. Workers’ compensation covers work-related disability (through cash/indemnity and medical benefits) but the disability must “arise out of” and “in the course of” employment, a phrase that has been litigated so frequently that it is darkly humorous that the architects of the system imagined it would remain “lawyer-free.” “Arising out of” refers to the causal origins of an injury or disease. “In the course of” refers to the “time, place, or circumstances” surrounding an allegedly work related injury or disease. In most jurisdictions an injury is said to “arise out of” employment if it is incident to employment, or if employment increases the risk of suffering disease, injury, or some other disability. In a smaller number of jurisdictions an injury or disease is compensable if, but for an employee’s position in the workplace, the disability would not have occurred (the “positional risk” test).

There are essentially two major problems when considering “disease” under workers’ compensation. First, occupational diseases (in-work diseases with some potential connection with work)—unlike “accidents”—do not happen all at once. It is much harder to see precisely whether an occupational disease “arose from employment” than it is to make the same judgment about a traumatic injury. I can see the sharp blow to the employee’s head occasioned by a steel pipe. I cannot see the gradual onset of a disease brought on by incremental exposure to dangerous substances; I can only infer it. True, we can speculate after long institutional and legal experience that if, for example, a coal miner who has worked underground for thirty years develops black lung, the condition was probably caused by work—this is really just a kind of collective intuition of increased risk. Sometimes we feel so strongly about the intuition that we create statutory presumptions for such situations—firefighters’ cancer presumptions were, prior to COVID-19, the latest workers’ compensation version of those “probably caused” shorthand techniques. We may, of course, later abandon the intuition if science definitively renders it invalid. And, if the coal miner (or the firefighter) was also, for example, a smoker, we may want to let the employer attempt to “rebut” the presumption by proving that cigarettes in fact caused the disease under consideration.

A second major, and related, occupational, “in-work” disease problem centers on “out of work” background causation: out-of-work and in-work causes may “mix” to spur development of what we have designated an occupational disease. How do we separate the causes to determine which predominate? We really do not, because we seldom can. We normally either place “the burden of proof” on the employee to prove causation (the burden of production and persuasion is continuously on the employee) or on an employer/insurance carrier to disprove causation once a claimant has made a threshold showing of plausible workplace causation (the burden of persuasion shifts to the employer/carrier after the employee has satisfied a burden of production). This is all very clunky and hard to think about but whatever this process may be in practice it is far removed from scientific causation--we simply line up experts and use phrases like "to a reasonable degree of medical probability," as if causation expressed in such a fashion is convincing. This lack of precision confuses laypersons but it may be merely performative; we want to convince ourselves we have done something rational. As an aside, one should note that states have done something very similar when considering multiple “negligent” causes of harm in tort law—that is how it is possible to ever litigate asbestos cases in which several manufacturers may have jointly, negligently caused a plaintiff’s disease. Otherwise it would be nearly impossible to prove that “but for” the negligence of any one of them the plaintiff would not have been harmed; so we devised a different test to make tort causation in such cases possible. (See Restatement Third of Torts § 27). Why do we go through these machinations? For the same reasons we created workers’ compensation a hundred years ago or so: in the absence of such techniques the loss from injury or disease would fall on workers most of the time and, as a matter of justice and policy, we concluded this is unacceptable. The party who can bear the loss in borderline cases should bear the loss.

States may also tinker with the quantum, or amount, of proof required to make out a claim in such joint causation cases. For example, a work injury may combine with another in-work or out-of-work cause to produce disability. If a state requires that the work injury be the “major contributing cause” of present disability, and places the burden of production and persuasion on the employee to make such a showing, claims will be screened out of workers’ compensation and their costs shifted or directed to the injured/sick worker or to some other benefit system. The impact of this rule on a COVID claim would be significant. COVID may logically be the product of both in-work and out-of-work coronavirus exposures and employees would be hard-pressed to prove that any particular exposure was the "major" cause of disabling COVID-19. In a similar exclusionary vein, a state workers’ compensation system may outright exclude “ordinary diseases of life,” a path that appears to have been followed by Arizona, Arkansas, Georgia, Kansas, Michigan, North Carolina, Oregon, and Virginia. Larson § 52.03[3]. Standing by itself the phrase is vague and must be interpreted by state courts, but it is easy to foresee that some states may determine COVID-19 is an “ordinary disease of life” because the general public is contracting it outside of work.  

What I wrote in the prior three paragraphs is background for why roughly seventeen states (as of this writing) have established some form of workers’ compensation COVID-19 presumption: without a presumption, some states have concluded, it will be too hard to establish workers’ compensation claims and, from the perspective of these states, that would be a bad policy outcome. But what if a state declines presumptively to cover COVID-19 under workers’ compensation? And what if a state additionally broadly provides immunity to businesses, immunity that covers ordinary negligence lawsuits brought by the businesses’ own employees? Is this de facto a “dual denial” of all remedies for worker injuries? The employee will be denied workers’ compensation and even if exclusivity therefore does not apply the employee could not bring a tort suit. There is an argument that it is not “denial” where an illness is covered by workers’ compensation but difficult to prove. Larson § 100.05[1][A]. The pure case of denial would be where a workers’ compensation system categorically denies workers’ compensation coverage of COVID-19, though I think the case that denial has occurred could be made out contextually, perhaps using statistical methods.

But assuming denial, is such denial constitutionally justifiable given the nature of the COVID-19 emergency? My bottom-line answer is that it is constitutionally justifiable only if, upon court challenge by an employee denied any remedy, a state can demonstrate that there was no lesser restrictive alternative to complete denial of a remedy. My sense is that a number of the state blanket liability immunity provisions around the country are overly-broad. Under current law they would probably be upheld because they have a “rational basis.” I believe that the “rational basis” standard of review is too low when what is at stake is the obliteration of (as opposed to tinkering with) remedies for death or injury caused by work. Such laws are not “merely commercial,” and should be attackable on grounds other than that they are “irrational.” But a new theory is required to hammer home the point, the attempted development of which is at the center of my research agenda. I am not prepared to concede that workplace injury is damnum absque injuria. On the contrary, I am preparing to argue that injury/"personal security" rights are "privileges or immunities of citizens of the United States."

Michael C. Duff

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