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