Thursday, December 24, 2020

“Red” States, the National Labor Relations Act, and Covid Vaccination Mandates

In recent posts I have noted that disability and medical costs arising from adverse reactions to Covid vaccinations are likely to be covered either by workers’ compensation (when the employer requires vaccination as a condition of employment) or perhaps by the federal Countermeasures Injury Compensation Program (CICP). I noted that workers’ compensation causation analysis might change if state or federal government were to require inoculation. Frankly, I had not considered the situation discussed in this morning’s Daily Labor Report (behind a paywall): “State lawmakers are floating proposals aimed at preventing government agencies, employers, or schools from forcing people to get the Covid-19 vaccine, although none of the bills has succeeded yet.” While I cannot imagine that any such proposal would become law—because I think most state governments, wherever located, would not want to bind their hands aggressively on emergency public health powers—it does suggest that there may be a good deal of reluctance by states to enact an employment vaccine mandate. The nascent backlash at least suggests that employers may have to unilaterally require vaccinations.

If employers require vaccines, the case for workers’ compensation coverage of adverse effects is strengthened, for reasons I have mentioned. And I want to qualify a circulating mantra that was again repeated in the same Bloomberg article:

Employers generally have the authority to require workers to get vaccinations and terminate them if they refuse, as long as the employers satisfy federal requirements related to accommodating religious objections or medical conditions that might qualify as disabilities. The U.S. Equal Employment Opportunity Commission updated its guidance Wednesday on employers and vaccine mandates in light of the newly approved Covid-19 vaccine.

This essentially says that the EEOC will not consider such a termination for vaccine noncompliance to violate one of the laws that it oversees, but it overlooks an important caveat: the National Labor Relations Act (administered by the National Labor Relations Board, not the EEOC). Under the NLRA, if employees concertedly refuse to work (in other words, more than one employee at the same workplace refuses to work), under a good faith belief that their health is in jeopardy, the work stoppage is protected under black letter federal labor law endorsed by the U.S. Supreme Court. The right runs to employees, not unions: all non-union employees have the right to concertedly engage in work stoppages protesting their working conditions (a fact that sometimes surprises people, though it has been true under the NLRA for decades). And, also contrary to popular belief (and contrary even to what many lawyers believe), safety-related work stoppages by non-union employees need not be “reasonable,” they need only be undertaken in “good faith.” The employees must really believe work will jeopardize their safety and, while the employees can be “replaced” during the work stoppage they cannot lawfully be “terminated.” I have written an article (forthcoming in the Saint Louis University Law Journal) discussing the American law of work stoppages in 21st century workplaces that reviews these principles (though things get tricky in the Gig economy).

How ironic it would be if red state legislators (historically in visceral opposition to federal labor law) were to see the situational utility federal labor law presented them. My guess is that they will not want to let that genie out of the bottle. It is another interesting example of the often subtle interplay between workers’ compensation, workplace safety, and labor law. In some ways, this has always been true. After all, the first American workers’ compensation statutes essentially copied the British Acts of 1897 and 1906. Those statutes resulted from pressure applied by British labor unions increasingly able to threaten use of the strike weapon in reaction to declining safety in 19th century industrial workplaces.

Michael C. Duff

December 24, 2020 | Permalink | Comments (0)

Tuesday, December 22, 2020

Hustling Through the New DOL FLSA Employee Test – Will it Change Anything?

The Bloomberg Daily Labor Report says, here behind a paywall, that yesterday “the U.S. Labor Department sent to the White House for review a high-profile final rule to ease employers’ use of independent contractors, continuing the Trump administration’s deregulatory push in the final weeks before the presidency changes hands.” The rule relates to classification of employees under the Fair Labor Standards Act.

Under current law, the Fair Labor Standards Act uses an Economic Realities Test to distinguish between employees and independent contractors that turns on 7 factors:

  • The extent to which the services rendered are an integral part of the principal’s business.
  • The permanency of the relationship.
  • The amount of the alleged contractor's investment in facilities and equipment.
  • The nature and degree of control by the principal.
  • The alleged contractor’s opportunities for profit and loss.
  • The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor.
  • The degree of independent business organization and operation.

The Department of Labor has hustled forward the new midnight rule, which purports to clarify the “economic realities” test by using a five-factor test emphasizing two “core factors” that should be afforded greatest weight. The two core factors are:

  • The nature and degree of the worker’s control over the work; and
  • The worker’s opportunity for profit or loss.

These factors, according to the DOL, are “highly probative” of the inquiry of economic dependence because the ability to control one’s work and earn profits or risk losses are at the center of what it means to be an “entrepreneurial independent contractor.” If these factors both point toward a classification that the employee is an independent contractor, the DOL’s rule takes the position that that classification is likely accurate.

The other three non-core factors are:

  • The amount of skill required to perform the work;
  • The degree of permanence of the working relationship between individual and the potential employer; and
  • The importance of the services rendered to the company’s business.

The soon-to-be new test seems highly litigable to me. It seems to impose primary and secondary analytical factors. But it is easy to predict that in many (most?) Gig economy-context cases a true control analysis will point in the direction of employee-status (which is why the Gig economy hates the control-focused Restatement Second of Agency test); and an (on paper) opportunity for profit or loss may point in the direction of independent contractor-status. That will open up analysis under the secondary, non-core factors, and we will be left with a 5-factor test versus the old 7-factor test. (I leave it to the reader to take an impressionistic look at the two clusters of factors). Obviously, the departing Trump-ites must believe that on balance more workers will be found independent contractors under the new test. Maybe. But I do not see how it will result in summary judgment dismissals. There are enough factors floating around that litigation over the new test will probably feel typical, even assuming the test hangs around for longer than 8 or 9 months, which I think improbable. In any event, state law employment tests such as those utilized by workers’ compensation may be influenced by but are never subject to the federal tests. Uber and Lyft have a long, long way to go on the road to their goal of exploding the whole idea of “employment.”

Michael C. Duff

December 22, 2020 | Permalink | Comments (0)

Monday, December 21, 2020

Congress (Apparently) Steps Back From Abyss of Nationalized Wrongdoer Liability Immunity

The (woefully inadequate) $900 billion Covid relief bill will not nationalize wrongdoer liability immunity. (Negligence law imposes liability on an actor for causing injury to another by being unreasonably risky as to the other’s safety—the actor is a wrongdoer not a victim). It is hard to know what counts as a “victory” within the din occasioned by the current maelstrom. But I suppose avoidance of the annihilation of liability for wrongful conduct counts for something.

Of course, state-level immunity is still an issue. Eventually this issue may raise grave 14th amendment issues as workers in the Gig economy (in particular) are left without remedy for wrongful injury. But one day at a time. Hopefully, the argument over federal usurpation of state law remedies is over for the foreseeable future. In that regard, the May 2020 letter jointly authored by the Consumer Federation of America, Consumer Reports, National Association of Consumer Advocates, Public Citizen, and U.S. PIRG remains as valid as ever.

Michael C. Duff

December 21, 2020 | Permalink | Comments (1)

Thursday, December 17, 2020

Coronavirus Vaccine Injuries May Be Covered by the Countermeasures Injury Compensation Program

I fear that very soon we may be facing vaccine injuries in connection with the dispensing of essentially experimental Covid vaccines. I certainly hope it does not happen, but experience is a cruel teacher. In addition to potential workers’ compensation coverage, there is also a federal program that covers just these types of injuries—the Countermeasures Injury Compensation Program (CICP). Unlike injuries caused by more routine vaccinations like seasonal flu, and covered by the Vaccine Injury Compensation Program, the CICP covers injuries from “countermeasures” which are defined as “a vaccination, medication, device, or other item recommended to diagnose, prevent or treat a declared pandemic, epidemic or security threat.”

Federal declarations issued by the Secretary of the U.S. Department of Health and Human Services specify the countermeasures covered by the Program, and declarations have previously been issued for medical countermeasures against COVID-19, Marburg fever, Ebola, Nerve Agents and Certain Insecticides, Zika, Pandemic Influenza, Anthrax, Acute Radiation Syndrome, Botulinum Toxin, and Smallpox. According to the Health Resources & Services Administration (HRSA—an agency of the U.S. Department of Health and Human Services) benefits include Medical Expenses, Lost Employment Income, Benefits to the Estate, and Survivor Death Benefits. I don’t know enough about the program to comment on benefit offsets and similar problems that undoubtedly arise in the interplay of multiple benefits and tort damages (and the like), though I do know that the CICP is the “payer of last resort.” I will be recommending to injured persons I may encounter that they simply file. From the perspective of protecting vulnerable workers, the more arrows in the quiver the better as far as I am concerned. We can do the math later.

For general information on covered injuries and causation see the HRSA page here.  

Contact information for this program in addition to the website to which I have linked above:

Health Resources and Services Administration, Countermeasures Injury Compensation Program, 5600 Fishers Lane, 08N146B, Rockville, MD 20857

[email protected]
1-855-266-2427 (1-855-266-CICP)

Michael C. Duff

December 17, 2020 | Permalink | Comments (0)

Wednesday, December 16, 2020

Will Covid Federal Civil Immunity Preempt California OSHA Covid Rules?

UPDATE: Some folks are telling me that liability immunity is being pulled from the table. I hope that is true, but let's just say I'm not taking this post down and won't be holding my breath, either.

It appears that one of the most Draconian American tort immunity bills ever conceived is about to be foisted on states any minute now. (But don’t worry, it will only be in effect for a year OR until a Government bureaucrat says the emergency is over – what could go wrong?). In essence Washington/corporate-dictated tort immunity (in derogation of a historically state and local prerogative) will mean the “empty preemption” of state (and in many cases) federal liability with respect to all things Covid (and you can expect creative expansion of defenses to include a Covid connection; not unlike my time at the NLRB when every employer defense in late 2001 somehow invoked 9/11). Time does not permit me to do a line-by-line analysis of the immunity provisions. (Workers’ compensation has been completely exempted). For now I want to focus on a very concrete question. A story in today’s WorkCompCentral about California Covid-related workplace safety rules stated that (behind paywall),

Employers who don’t follow Cal/OSHA’s new rules may see escalating fines, from around $13,000 for a first violation to hundreds of thousands in penalties for willful and repeated disregard of approved safety measures.


The rules require employers to create and maintain proactive, site-specific plans to protect workers from the virus. Employers also must provide workers with face coverings and enforce social distancing policies spelled out in federal, state and local health guidelines.

According to the draft of the likely federal Covid immunity language that has been circulating, Download 2020decemberdraft immunity bill, “a coronavirus exposure action in which liability may be imposed under a standard that is less stringent than a standard of gross negligence may not be filed or maintained in any Federal, State, or Tribal court.” Sec. 11(a). Moreover, the same section “preempts and supersedes any Federal, State, or Tribal law, including statutes, regulations, rules, orders, proclamations, or standards that are enacted, promulgated, or established under common law, under which liability may be imposed in a coronavirus exposure action under a standard that is less stringent than a standard of gross negligence.” Sec. 11(d).

On the other hand excluded from the definition of “coronavirus exposure” or “coronavirus-related medical liability” actions, subject to the preemption described in the previous paragraph, is “a criminal, civil, or administrative enforcement action brought by the Federal Government or any State, local, or Tribal government.” Secs. 3(4) and 3(7).

To the extent Cal/OSHA penalties are imposed for other than “gross negligence” you might think they are spared from preemption if imposed pursuant to state “administrative enforcement action.” But, as my administrative law students over the years would tell you, administrative orders are not self-enforcing, they must be enforced by a court. So the question becomes whether an agency’s application with a court for enforcement will survive preemption under Sec. 11(a). (Buried in that question is also a thorny abstention problem since this bill badly wants to shunt ALL state liability claims into federal court rather transparently to ensure that they are summarily dismissed. See Sec. 31—will federal courts issue injunctions to suspend state court enforcement of state administrative orders?).

The argument here should be that exclusion of state enforcement actions from the definition of “coronavirus exposure” or “coronavirus-related medical liability” implicitly acknowledges that preemption applies only to individually-filed liability actions, and that California should be able to enforce its OSHA penalties in its own courts.

Michael C. Duff

December 16, 2020 | Permalink | Comments (0)

Thursday, December 10, 2020

Holiday Book-Giving: Top Eight Books, 2020, for the Workers’ Compensation Professional (One Teacher’s Selections)

            Here are my humble recommendations with regard to the best books for the workers’ compensation professional for 2020!

            Soul Full of Coal Dust (Little Brown 2020) by journalist Chris Hamby, is the book of the year for professionals in our field.  Here the hero is John Cline, a West Virginia federal Black Lung specialist who, first as a benefits counselor and then as a late-in-life law school grad, fights for pneumoconiosis victims both in court and in Congress.  The story, in short: for many years lawyers defending the coal industry would, during discovery, withhold medical evidence which showed that the claimant miner had pneumoconiosis.  Defense lawyers believed that such items were not discoverable, and in many cases pro se (or poorly-represented) miners would not know to ask for such items anyway. Cline and his colleagues discovered the tactic and were aggressive in changing custom, law, and practice.  The author tells a good story, knowing how to keep the reader engaged.

            Drake University Professor Nate Holdren has penned a revisionist history of the creation of workers’ compensation laws a century ago in Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era (Cambridge Univ. Press 2020).  According to another historian of the creation, John Fabian Witt, the author “fiercely critiques the workers’ compensation reforms enacted by progressive reformers a century ago as legitimating a form of systematic labor violence.” 

            Dr. Richard Victor, with Scenarios for the 2030s: Threats and Opportunities for Workers’ Compensation Systems (Sedgwick Institute 2019), has authored an intriguing book seeking to predict how the socioeconomic landscape surrounding our field will look in another decade.  In this current period of anxiety and angst, Victor forecasts, by coincidence, an equally unhappy set of predictions for our system.  This is so as he hypothesizes a three-fold increase in the costs to employers of workers’ compensation over the next couple decades, while benefits to workers do not meaningfully increase.  The author, as a solution, devotes much attention to the idea of “super carve-outs” which would cover not just collectively-bargained arrangements but other areas of employment. 

            Amy Aronson, who teaches at Fordham University, has published a new (and the first) biography of the lawyer and social reformer Crystal Eastman.  In Crystal Eastman: A Revolutionary Life (Oxford University Press 2019), Aronson shows that Eastman’s memorable role in the Pittsburgh Survey, at the conclusion of which she published Work-Accidents and the Law (1910), was just the start of an amazing professional career.

            In Hustle & Gig: Struggling and Surviving in the Gig Economy (University of Chicago Press 2019), sociologist Alexandrea Ravenelle undertakes a critical examination of work in the gig economy. She does so through interviews with workers in four different types of gig work: drivers for Uber and Lyft; “Taskers” for TaskRabbit; chefs working for the now-defunct Kitchensurfing; and Airbnb entrepreneurs.  The dominant theme is that the gig economy is, for the vast majority of workers, not some utopian form of work, where individuals empower themselves to become entrepreneurs, free of onerous control by bosses, and secure a position to dictate their own destiny.  Hustle & Gig is, as to workers’ compensation, a remarkable book.  Among the many critiques of the gig economy, none that I know of devote as much space to the lack of work injury protection that attends gig economy jobs.

            In Erin Hatton’s Coerced: Work Under Threat of Punishment (University of California Press 2020), the author, also a sociologist, examines the circumstances of four types of individuals at labor: graduate students, “workfare” workers, scholarship athletes, and prisoners. These are all types of workers who are not merely subject to control under the penalty of being fired, but under the threat of being punished. The author calls this phenomenon “status coercion.” Little discussion is found here of how injuries sustained by such individuals in the midst of their labor is handled. Still, the book is educational in prompting the reader to think outside the box and to consider, from humanitarian, ethical, and economic points of view, a very different form of labor relationship.

            The issues of work, disability and the circumstances of labor in a steel mill are all central to the candid memoir Rust: A Memoir of Steel and Grit (Flatiron Books 2020), by Eleise Colette Goldbach.  She treats all of these issues, front and center, in an edifying, if ultimately bleak, account of her years as a steelworker at the vast ArcelorMittal mill in Cleveland.

            Speaking of bleak memoirs, in Mill Town: Reckoning with What Remains (St. Martin’s Press 2020), journalist Kerri Arsenault tells the story of a small town in Maine which has long been dominated by a paper mill believed by many to be sickening its workers and local residents. The suspected agent is dioxin, a byproduct of paper bleaching, which many say can cause cancer.  The hero of the book is a town physician who crusaded for decades against the mill, seeking to publicize such things as an alarming number of childhood cancer cases. 

December 10, 2020 | Permalink | Comments (0)

Wednesday, December 9, 2020

Workers’ Compensation Coverage of Adverse Reactions from Employer-Required Covid-19 Vaccination?

A member of the press asked me today whether illness caused by an adverse reaction to an employer-required Covid-19 vaccine would be covered under workers’ compensation. Suppose, in other words, the employer says I cannot come back to work unless I receive a Covid-19 vaccine. I do as required and I become ill, suffer work incapacity, or require medical treatment because of the adverse reaction. Is expense occasioned by the adverse reaction covered under workers' compensation?

I suspect the question may have been prompted by today’s news that “Britain’s medical regulator warned Wednesday that people with a history of serious allergic reactions shouldn’t get the COVID-19 vaccine from Pfizer and BioNTech, and investigators looked into whether two reactions on the first day of the U.K.’s vaccination program were linked to the shot.”

According to Larson’s workers’ compensation treatise:

When inoculation is occasioned by the particular conditions of employment, injury resulting from the inoculation should be deemed to have occurred in the course of employment. If there is an element of actual compulsion emanating from the employer, the work connection is beyond question, as when the company requires the employee to submit to vaccination by the company’s doctor as soon as the employee is hired, or during an epidemic tells the workers that unless they are vaccinated they cannot work until the epidemic is over.

Larson’s Workers’ Compensation Law § 27.03[2]

As authority for the proposition the treatise cites Texas Employers Ins. Ass’n. v. Mitchell, 27 S.W.2d 600 (Tex. Civ. App. 1930); Sanders v. Children’s Aid Soc’y, 238 A.D. 746, 265 N.Y.S. 698 (1933), aff’d, 262 N.Y. 655, 188 N.E. 107 (1933). Spicer Mfg. Co. v. Tucker, 127 Ohio St. 421, 188 N.E. 870 (1934). Alewine v. Tobin Quarries, 206 S.C. 103, 33 S.E.2d 81 (1945).

So the short answer to the question appears to be yes, adverse reactions from employer-required Covid-19 vaccinations are probably compensable under workers' compensation. The analysis might be complicated on causation grounds if federal, state, or local governments ordered employee inoculation -- a subject beyond the scope of this post..

Michael C. Duff

December 9, 2020 | Permalink | Comments (0)

Thursday, December 3, 2020

Bipartisan Consensus?: Businesses (and Others?) May Negligently Expose You to Coronavirus with Impunity

If you work in the Gig economy, you are not (or so the Giggers contend) an employee, and are therefore not entitled to workers’ compensation (among other employee rights). The same is true if you are any other flavor of independent contractor. So – off you go to work in the intensifying pandemic. One day, your “not-employer” sends you out to clean coronavirus-infected surfaces, with no bleach and dirty rags. As a result, not only do you get sick, but anyone coming into contact with the “not cleaned” surface becomes sick.

So now I ask you—should a reasonably prudent person know that you cannot send workers out to clean surfaces with no bleach and dirty rags without risking the health and safety of both those workers and customers (and other foreseeable human beings)? And if that person nevertheless sends those workers out with no bleach and dirty rags would it be irrational for a jury drawn from the community to deem that act “wrongful.” Should a jury of our peers at least be permitted to assess the situation?  

Well a bipartisan consensus (a "stimulus" bill that I think will predictably help all the wrong people) has emerged that will leave you—the sickened worker, or the customer coming in contact with the not-cleaned surface, with no remedy for your illness as a matter of law even if you could prove it was unreasonably caused by an actor not doing what a reasonably-prudent person should do to avoid making someone sick. (You probably still can bring a claim if you can prove by “clear and convincing evidence” that the person making you sick was “grossly negligent”—but you will not be able to prove this, and the bipartisan consensus knows it. This is the wholesale elimination of all Covid-related causes of action for negligently inflicted harm. Compare Brown v. Merlo, 8 Cal.3d 855 (1973) (allowing recovery under “guest statute” only for wanton and willful misconduct tantamount to elimination of negligence cause of action). According to reports,

The bicameral, bipartisan compromise would provide $908 billion in aid and also shield businesses from coronavirus lawsuits for a few months to allow states to develop their own liability reforms. It falls between Senate Majority Leader Mitch McConnell’s $500 billion proposal and Democratic legislation of about $2 trillion.

Remember this treacherous act my friends, for it is not “civilizational.” The bill not only strips historically-grounded rights it implicitly encourages states to strip such rights. I find that breathtaking. You will be told that it is no big deal. Does it really matter if the constitution is violated “just a little” (as I believe it is when you cut off all rights to a remedy for wrongfully caused physical harm) for a short period of time? I hold with this tenet:

Slight encroachments create new boundaries from which legions of power can seek new territory to capture. ‘It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.”

Reid v. Covert, 354 U.S. 1, 39-40 (1956) quoting Boyd v. United States, 116 U.S. 616, 635 (1886).

In the market for a bridge too far? Here it is. A Marbury v. Madison moment.

Michael C. Duff

December 3, 2020 | Permalink | Comments (0)