Saturday, February 20, 2021
Today, I accidentally bumped into a recent Covid-related bill offered in the Arkansas House within the last couple of weeks that looked at first blush employee-friendly. It would exempt Covid-19 from the otherwise categorical exclusion of “ordinary diseases of life,” deeming Covid an occupational disease that may be proven by “a preponderance of the evidence.” (Section 3). From the employee’s perspective, so far, so good. However, the bill also states under Section 2(a)(3):
Requiring an employee to perform work when the employer has knowledge that, within the normal course and scope of the employee’s job performance, exposure to coronavirus 2019 (COVID-19) or severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) or any of its mutations is possible, likely, or certain is not intentional conduct that would remove the employer from the protections of this chapter.(emphases supplied)
This bill should be considered in the context of Arkansas Governor Asa Hutchinson’s prior Executive Order broadly granting business immunity for its negligent Covid-19-related conduct, with the caveat: “Immunity does not apply to willful, reckless or intentional misconduct.” (It is unclear from the text if the standard is meant to be the same as “gross negligence,” the caveat often mentioned in state immunity bills emerging elsewhere in the country).
Hutchinson’s decree, of course, immediately knocked Gig workers (deemed independent contractors and not employees) out of the box because in connection with Covid-19 harms they have no access to workers’ compensation law (as non-employees) and now have no access to remedies for negligently caused Covid harms. If tort law at the dawn of workers’ compensation had only allowed employees remedies for intentional torts there would have been no grand bargain. Why would employers need to bargain for reduced liability through workers’ compensation if they almost never lost cases? Make no mistake, the immunity standards are designed so that employers could almost never lose a tort claim (and workers' contingency lawyers would almost never take cases).
But the workers’ compensation bill under discussion is more stealthily harmful to regular employees. Where a state allows an exception to exclusivity for intentional torts, an employee could at least attempt to meet the higher tort standard (that an employer “knew to a substantial certainty” that an injury would occur, or something of the kind), especially in connection with egregious cases. Under this bill, even if the employer knew with certainty that it was requiring an employee to become exposed to Covid-19 (in other words, that intentional tort was nearly a foregone conclusion if causation were established), the employee’s remedy would be exclusively limited to workers’ compensation. All employee injury claims would be kept firmly in the workers’ compensation system. Civil court judges could quickly dismiss employee-filed tort claims on jurisdictional grounds.
Yet, the sweeping of Covid-19 claims into workers’ compensation is not accompanied by a causation presumption. A cynic might say this is therefore where claims will go to die (though I think the unprovability of Covid-19 under the traditional “arising out of” element has been vastly overstated). But assuming that a state system is acting as if Covid-19 cannot be proven by conventional “arising out of” means, this mechanism sweeping in claims is potentially a kind of “empty preemption”: just because workers’ compensation “covers” a claim does not mean the claimant will receive an award, meaning the employee could be left with no remedy if exclusivity applies blindly to all “covered” injuries. See Larson’s treatise, § 100.05. (Emily Spieler and John Burton have termed this phenomenon “dual denial” – See Spieler & Burton, “The Lack of Correspondence Between Work-Related Disability and Receipt of Workers’ Compensation Benefits” at 496).
You might say, “this is no big deal because the person who cannot win a workers’ compensation claim (without the causation presumption) also could not win a tort claim.” The rejoinder to that argument is that intentional tort actions remain universally available under Covid-19 state immunity laws, have higher damage award and settlement potential, and would be governed by tort causation principles that can be unpredictable in multiple cause contexts—e.g., the claim that Covid-19 was caused both by work-related and non-work-related factors. (Arkansas has apparently adopted the “substantial factor” test in tortious disease claims, Green v. Alpharma, 284 S.W.3d 29 (Ark. 2008), a test holding that a plaintiff may recover against a defendant even where there are other causes of harm, if the defendant’s conduct was a “substantial factor” in producing the harm, notwithstanding the existence of the other factors).
Ultimately, I think this contemplated jiggering of the Arkansas workers’ compensation statute may presage broader legislative realization that dual denial may be heading for constitutional challenge. Thus, the maneuver is to bring claims within workers’ compensation (by not designating Covid-19 an “ordinary disease of life”), so that in theory remedies to employees have not been completely cut off, while providing no causation relief in the form of a presumption for claimants.
Michael C. Duff