Sunday, July 11, 2021

UCLA Professor's Socio-Historical Account of Fatigue Touches on Workers' Compensation Themes

            UCLA public health professor Emily Abel has written a brief but wide-ranging social history of the phenomenon of fatigue. Abel, herself a breast cancer survivor who suffered from years of fatigue following chemotherapy, combines her sober historical analysis with aspects of memoir.  This approach makes for compelling reading.  See Emily K. Abel, Sick and Tired: An Intimate History of Fatigue  (University of North Carolina Press. 196 pp.  2021).

            And the book, treating an example of “contested illness,” will be of interest to members of the workers’ compensation community.

            Fatigue itself is not reflective of a discrete injury or disease (as she says, “there are no diagnostic codes for fatigue”), but is a complaint often offered by patients (including injured workers) who are describing the aftermath of their injury and treatment.  The most commonly-encountered example by this writer is the easy one: the worker who is medicating (or over-medicating) for pain and expresses an inability to return to work because of the dangers of driving while drowsy.

            Abel briefly mentions this situation, but the fatigue upon which she focuses is the post-injury or post-medical treatment condition of extreme lethargy that impairs individuals from some or all of the normal activities of daily living. The leading currently-recognized malady is Chronic Fatigue Syndrome (CFS), and of special interest to Abel is the malaise which can often follow cancer treatment. 

            Abel demonstrates that, over the decades, complaints of fatigue have been looked upon with suspicion by a society which has long viewed “productivity [as] the only measure of human worth.”  She analogizes this phenomenon to the intolerance of both the medical profession and society to sufferers of long-term chronic pain and other “contested illnesses,” like chronic Lyme Disease, that implicate long-term disability. 

            Abel identifies and critiques three themes that she detects in the socio-historical record of how fatigue has been treated.  All of these, notably, touch on how lawyers and judges think about disability.

            She first concentrates on what she calls the rejection by modern medicine and society of sufferers’ subjective accounts of exhaustion (she calls this “embodied knowledge”).  Most doctors and systems (like disability systems) demand that objective signs of pathology must be evident before a condition can be legitimated. This thinking echoes, of course, the familiar IME doctor refrain that objective signs of injury must be detectable before complaints of pain can be credited.  

            She reviews, secondly – and throughout the book – society’s devaluation as unproductive, and hence burdensome, those who, because of chronic conditions, are unable to work.  This societal view, which the author decries, is pervasive in our field, where the worker who refuses to return to modified duty is often cast as a burden on the employer, the insurance carrier, and the community at large.

            Abel analyses, in her third and most compelling discussion, the “triumphal recovery narrative” which is so popular in both medicine and the disability insurance community. A dependable standby of workers’ compensation seminars is, indeed, the speaker who contrasts the disappointing long-term disability claimant with the much-more-seriously-injured worker who has recovered, shown “resilience,” and excelled.  Injured workers are encouraged by such speakers to follow the example of Christopher Reeve, whose quadriplegia did not prevent him from continuing with a fulfilling and productive life. 

            Of course, the answer to this rhetoric, typically offered by motivational speakers, is that heroism is not, or should not be, the standard.  As the author, reflecting on precisely this point, states, “physical imperfection is a condition of human life, rather than a cause for shame …, disability arises as much from social arrangements and cultural attitudes as from physical impairment, [and] … everyone cannot be expected to overcome whatever adversity strikes ….”  She is correct: we all admire the strong-willed, the person of true grit, and the resilient. But on the other hand, not everyone is Superman.

            The author’s historical review of how fatigue has been diagnosed by doctors and regarded by society over the last 150 years will educate and enlighten the disability professional.  The book follows through, further, on its promise of intimacy. Abel, in this regard, affectingly recounts not only her struggle with breast cancer but her childhood and how the then-current scourge of polio affected her and her thinking about how one must respond to disease, surgical intervention and, finally, its exhausting aftermath.      

July 11, 2021 | Permalink | Comments (0)

Monday, March 15, 2021

New Republic Article by Zaitchik Discusses COVID Long-Haulers ... and Their Disability Remedy

            Many in the workers’ compensation insurance industry have been trying to predict what costs COVID-19 will ultimately impose.  One line of thought is that most claims will be of short duration, with those found compensable perhaps only lasting weeks, and with de minimis medical expense.  Other claims analyzed in such projections, of course, are more costly occurrences.  Those are the ones featuring death. 

            Insurance industry commentators, however, are now recognizing another potentially expensive type of claim, that is, those COVID cases that become chronic.  The term for the condition is “Long COVID.”  The victims, meanwhile, have been called “long haulers.” 

            In a new article, which I highly recommend, the author interviews a number of Long COVID patients with an eye towards determining their typical symptoms, determining how they are treated by the medical field and, pertinently for our purposes, how they are to survive from an economic point of view.  Alexander Zaitchik, The Forever Disease: How COVID-19 Became a Chronic Condition, The New Republic, p.32 (March 2021),

            All of this is of interest to the workers’ compensation professional because it is chronic cases that can be the most challenging for the system.  And, notably, the author here compares Long COVID to a long-recognized condition we encounter in workers’ compensation, “chronic fatigue syndrome” (CFS).  Here the author refers to CFS in its full modern articulation, or Myalgic Encephalomyelitis/Chronic Fatigue Syndrome, or ME/CFS.  ME/CFS is like another sometimes-chronic condition, Lyme Disease, encountered in workers’ compensation. 

            Both CE/CFS and chronic Lyme said to be are diagnoses with “no clear markers.”  In this article, the author assigns Long COVID to this this group of ailments: “Those who live with ME/CFS know full well the consequences of living in a medical no-man’s land.  Like Long COVID, ME/CFS usually has no clear biological markers. There are no on-label treatments.  Patients are often undiagnosed, misdiagnosed, or altogether dismissed by doctors.” 

            What are the symptoms of Long COVID?  The author identifies them as “headaches, nerve pain, cognitive dysfunction, hair loss, constipation, and extreme weight loss.”  A key symptom, however, is indeed like CFS – the same persistent fatigue that afflicted the COVID-19 victim in the first place.

            The author reports that researchers have long known that virus sufferers do not all have the same illness experience.  Some, indeed, develop a chronic condition.  The author remarks, “research on post-viral illnesses suggest that as many as half or more of those who survive the virus could suffer one or more symptoms for months or years.  Whatever the final number, the pandemic’s mortality rate will continue to be dwarfed by the long-hauler population.”  This fact leads to an issue pertinent to our field; a key issue as the population of chronic sufferers “is how to support and care for a new cohort of chronically ill Americans, possibly numbering in the millions.” 

            The remedy of workers’ compensation is not mentioned in the article, and none of the individuals interviewed alleges that they contracted the virus from a work exposure.  Thus, as one might expect, Social Security Disability is identified as the obvious remedy for the true long haulers.  “Most,” the author states, “will likely turn to their earned Social Security Disability insurance benefits….”  But will this really happen?  The author reports that, as of 2017, SSA reported that only about 13,000 individuals received this key benefit for the similar diagnosis of ME/CFS. 

            Of course, the author points out that SSD is an imperfect remedy for most, given the waiting period for both benefits and the accompanying Medicare card.  On this point, Social Security expert Nancy Altman told the author, “the mounting number of long haulers makes eliminating both waiting periods even more important.”  She adds, “in the meantime, some people found medically eligible may end up on SSI [Supplemental Security Income] and Medicaid, but that requires having virtually no income at all.” 

March 15, 2021 | Permalink | Comments (0)

New Scholarship: Tort Liability for Aggressive Anti-Maskers

            In a timely article, a father and son pair of  Philadelphia-area authors theorize about the tort suits that might be filed by victims (mostly workers are hypothesized) of the aggressive behavior of that supremely uncivil and churlish breed of our fellow citizens: the willful anti-maskers.  See Andrew D. Cotlar & Joshua H. Cotlar, Liability Unmasked: Pennsylvania’s Tort Law Applied to COVID Anti-Maskers, Pennsylvania Bar Association Quarterly (January 2021).

            The authors first cite examples of instances (in Pennsylvania and throughout the U.S.) where workers in the midst of their labor are assaulted or threatened by anti-maskers.  Most of such acts are actually criminal in nature, but the authors observe that in many cases, the police are unable or unwilling to enforce the law.  Here, the authors posit, tort law can have a role: “This article argues that … tort law has traditionally served the function of expressing social norms and providing guidance, and incentives, for good behavior where the police power of the state may fail to be applied, and that liability for refusing to wear a mask during a health pandemic serves just this purpose.” 

            When a worker is physically assaulted and sustains injury by an anti-masker, this model sounds ideal.  In cases where the anti-masker’s aggression is deliberate exhalation on the worker, however, the same causation challenge that impairs the workers’ compensation remedy haunts a cognizable tort suit: “The greatest difficulty from a plaintiff’s perspective will likely be establishing that the plaintiff’s harms were caused by a particular encounter with a particular defendant, as distinguished from generalized conditions of the pandemic likely to cause similar effects.” 

            Still, the authors conclude, “A creative and persistent litigator may find this a challenge but conversely may also be able to develop the necessary basis for liability through proper eye-witness testimony, video surveillance, contact tracing and medical, psychological or economic expert testimony.”    

March 15, 2021 | Permalink | Comments (0)

Thursday, March 11, 2021

Larson Treatise "Emerging Issues Analysis" (2020): An Anthology Delivering Complete Immersion in the Field

            The editor of the Larson treatise, North Carolina lawyer Thomas Robinson, has again published his anthology, Workers’ Compensation Emerging Issues Analysis (LexisNexis/Matthew Bender.  2020.  233 pp.).

            This book, though expensive, continues to provide the reader with full immersion in both the issues of the day in our field, and in those challenging our intellects for decades.  No completely new writing by Robinson (I don’t believe) is published in the book.  Instead, the Emerging Issues Analysis is an anthology of the author’s LexisNexis commentaries over the prior year, along with select essays by a number of colleagues.  Completely new material, on the other hand, appears from the author’s collaborators. These are defense lawyers from the several states (including California) who belong to the National Workers’ Compensation Defense Network (NWCDN). 

            Though the book, published now for several years, is a valuable, completely immersive read, it nevertheless now bears (unlike before) a defense orientation.  A reading is not quite the defense-fest experience one has at the Orlando WCI gala or similar events.  Yet, as the various defense lawyers lead discussions for their respective states on the issue of COVID, virtually all line up with the supposed definitive analysis for why COVID-19 could not possibly be either an accident or occupational disease – only on rare occasion acknowledging the injured worker’s (or his widow’s) perspective.


            The book features a subtitle, COVID-19 in the Workplace.  And, notably, the first section of the book is comprised of twenty-one essays addressing workers’ compensation and COVID-19.  The treatment is comprehensive, with Robinson and his collaborators treating such items as basic compensability; the trend of states enacting causation presumptions; and the compensability of injuries sustained by telecommuters. 

            Robinson has the most articulate voice here in terms of policy.  He identifies cases of certain states where infectious diseases have, historically, been compensated, even without an occupational disease mechanism being employed.  He identifies, for example, the famous Pennsylvania case City of New Castle v. Sallie (1988), where an unfortunate office worker died from bacterial blood poisoning after a good-will kiss (at an on-premises maternity leave party) he gave to an infected but latent coworker. 

            Robinson, however, does not perceive workers’ compensation as a particularly good vehicle for providing coverage and potential compensation for an infectious disease like COVID.  This is so, as most can intuit, because COVID is just that, an infectious disease, and one that can be contracted virtually anywhere.  Of course, it is indeed non-work social settings, like bars and restaurants, church and choir practice, etc., that seem, for most, the most risky environments. 

            Robinson is correct in this regard.  However, it is submitted that no reason exists, in the present day, to reject the idea that those whose work put them at actual or increased risk of infectious disease should be barred from workers’ compensation.  This is certainly so when medical causation (however much a challenge) demonstrates work-related causation.  Further, for better or worse, American society has no 24/7 system of disability and medical insurance, so it is hardly unreasonable for those who believe they have been infected at (or have had their loved ones killed by) work to pursue workers’ compensation benefits. This is certainly so when they have no other insurance providing for disability and medical coverage.    

            Robinson does not think much of governors taking executive action to create COVID presumptions. Indeed, one of his essays is entitled, “State Governors Have Pens, Who Needs Legislatures?”  Another of his critiques echoes the same he has voiced about the popular PTSD presumptions: why should certain workers like first responders or front-line workers (those who labor in grocery stores and hospitals), enjoy presumptions, when the general population does not? 

            Another essay by Robinson sets forth the welcome reminder that presumptions have, over the century, been common phenomena of workers’ compensation laws.  On the other hand, it is undeniable that the promotion and enactment of presumptions in the present day has become a favorite of legislatures.  The first-responder cancer and PTSD presumption mechanisms of the last decade or so are obvious examples.            


            Among Robinson’s additional essays of interest is his reprint of The AMA is on Another Collision Course with Protz.  Robinson published this wise essay in August 2020; in it, he explains how the AMA has suspended its historical pattern of publishing occasional new editions of the AMA Guides.  He explains that the AMA has a new plan: “Not to create a Seventh Edition, but to continuously update the Guides to reflect the current science and best practice of medicine.”  The new version will be online, and no new hard-copy text will apparently be published. 

            Here, in summary, is Robinson’s concern over the proposal: “The AMA’s proposed method of ‘updating’ the Sixth Edition on a rolling basis flies in the face of Pennsylvania’s Protz II decision….”  (Citing the astonishing Pennsylvania case, Protz v. WCAB (Derry Area School District), 161 A.3d 827 (Pa. 2017), which forbade the "most recent edition" formulation, and struck the Guides from the law.)  Robinson takes for granted that “to the extent that the AMA makes changes to the Sixth Edition, on a rolling basis, or otherwise, those changes would not be effective in Pennsylvania.” 

            This observation is surely correct. 


            As foreshadowed at the outset, Part 2 of the book is prepared, in part, by Robinson’s collaborators from the NWCDN.  Robinson and collaborators proceed through the several states and identify jurisdictional trends and cases.  Virtually all of the contributors take a stab at analyzing how COVID might or might not be compensable under the accident and occupational disease provisions of their laws.  As noted at the outset, a common (though not unanimous) refrain is that COVID clearly will not be compensated.

            All of this material is must-reading for the true national expert.  Still, the most intriguing and helpful material is constituted by the Part 2 summaries of the most important cases decided the last year in each of the respective states.  It is here, simply by analogy, that the practicing attorney, judge, and true student of the field will learn the most. 

March 11, 2021 | Permalink | Comments (0)

Tuesday, February 23, 2021

A Disguised Vaccination Mandate: Submit to Vaccination or Forego the Workers’ Compensation Causation Presumption

A workers’ compensation bill filed in the Illinois House on February 19 provides, “no compensation shall be awarded to a claimant for death or disability arising out of an exposure to COVID-19 if the employee has refused a vaccination.” 820 ILCS 305/7.5 new

This is a very sticky wicket. If the State may compel an individual to receive a vaccine, despite 4th amendment considerations, then perhaps the provision is no big deal (even though it leaves a bad taste in my mouth). But if the State cannot compel receipt of the vaccine then I am at a loss to say how the provision does not amount to a prohibited conditioned benefit—a benefit conditioned on foregoing a constitutional right. See Perry v. Sinderman, 408 U.S. 593, 597 (1972); Sherbert v. Verner, 374 U.S. 398, 404 (1963).

Indeed I think workers’ compensation benefits implicate this principle even more strongly than the cases I just cited, which essentially stood for the principle that, even if creation of a right by Government (such as, say, a welfare benefit) is completely discretionary, the benefit may not be freighted with unconstitutional conditions: “you get this benefit only if you agree never to belong to any faith other than Christianity.” But in the case of workers’ compensation, the quid pro quo for a tort right, I resist the notion that the “benefit” received is completely discretionary. It is not a welfare benefit, it is a substitute for a historically conferred tort remedy of ancient lineage. So the state can take that benefit from me unless I assent to an unconstitutional invasion of my body?

As I say, if a mandatory vaccination is not an unconstitutional invasion of my body then my concern fades into the mist. In any event, it is a very unsavory way for the State to sneak into the law a vaccination mandate. If it is to be done, do it in the open.

Michael C. Duff     

February 23, 2021 | Permalink | Comments (0)

Saturday, February 20, 2021

Locking Down Nonliability—An Accidentally Close Reading of an Arkansas Covid-19 Bill

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

February 20, 2021 | Permalink | Comments (0)

Monday, February 8, 2021

John Burton & Mike Duff on Workers' Compensation Covid Presumptions

Back on January 22 Professor Burton and I presented at a webinar conducted by the Workers' Injury Law and Advocacy Group (WILG) and titled "COVID as an Occupational Disease: How Do Various States Handle these Claims?" In this report, published by WILG, the edited papers from the webinar have been published.  Most of the report consists of Prof. Burton's substantial paper. I contributed  a shorter paper on the legal mechanics of how the presumptions operate in an evidentiary sense, which gave me an opportunity to write the delightful phrase, "bursting bubble presumption."

One important difference between the views of Professor Burton and my own is that, while we each support the idea of causation presumptions, he would automatically limit presumptions to a small universe of first responders and narrowly defined (perhaps by CDC categories) "essential workers." I, on the other hand, am much more desirous of a robust, transparent, democratic debate on just who qualifies as an essential worker. It is now very clear that Covid 19 has had a disparate impact on communities of color; and the elephant in the room is that limiting Covid causation presumptions to "first responders" may have the impact of privileging relatively high paid, white, male workers. I do not say that such limitations re definitively wrong. I merely think the matter of eligibility should be transparently and robustly debated and the premise thereby subjected to public scrutiny.

Professor Burton and I reach some common ground (and perhaps compromise) by way of his very interesting proposal that presumptions could be triggered by reference to OSHA-cited workplaces: causation presumptions could be applied to workplaces known to be violating OSHA Covid-related safety standards. A mechanism of that type may be preferable to presumption structures that ex ante (even if unintentionally) operate to discriminate against low wage workers who are predominantly of color and women. In some ways it avoids the question of who is essential targets coverage to where it is most needed.



Michael C. Duff   

February 8, 2021 | Permalink | Comments (0)

Sunday, January 31, 2021

Is the Accident Element of Workers’ Compensation Itself an Historical Accident?

As I commence another semester teaching workers’ compensation law, blissfully if artificially abstracted from Covid contexts, I find myself befuddled by a fundamental and, I naïvely had imagined, simple question: why did state workers’ compensation statutes ever include an accident requirement?

As workers’ compensation specialists know, the standard workers’ compensation coverage formula (in most but not all states) is something like, “incapacity for work is covered if resulting from a personal injury by accident arising out of and in the course of employment.” Many insiders understand that functionally the formula has operated historically to exclude certain categories of arguably work-related injuries—notably cumulative and repetitive injuries, and disease. Often, courts will dramatically remind readers that workers’ compensation was never meant to be “general health insurance.” Yet states that have foregone the accident requirement altogether—e.g, Massachusetts, Maine, Wyoming—do not somehow reject workplace causal connection as a requirement for coverage, so the “general health insurance” quip is somewhat hyperbolic. Under black-letter workers’ compensation law an “accident” is an event that occurs “unexpectedly” at a “definite time” (or something of the like). Where the accident concept is applicable, the law can (and does) complicate matters by (depending on the state) asking whether by “unexpected” one means that the cause of the injury was unexpected, or that the result/disability was unexpected. Courts also ask whether by “definite time” one means that the injury occurred at a definite time or that the out-of-work disability occurred at a definite time. The questions are prickly, and states’ laws on these conceptual rivulets are often inconsistent. I will be pushing my students on the “stickiness” of this doctrine in the upcoming week.

But I have a different question that I am thinking about. The “injury by accident” language came to the American statutes from the original English workers’ compensation statutes of 1897 and 1906. I am beginning to think the purpose of the “accident” language was not to limit coverage of workers’ compensation claims but to provide notice of expanded employer liability, to make clear that even though the injury was “merely” an accident—and therefore not actionable in negligence—the worker nevertheless had a "claim" (an unusual proposition in 1897). In the language of the old 1906 English statute at Section 1:

If in any employment to which this Act applies personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as herein-after mentioned, be liable to pay compensation in accordance with the First Schedule to this Act.   

But the exclusion of nonaccidental injury takes on quite a different tenor when one considers that it is being juxtaposed to negligence. In the same Section the statute reads:

When the injury was caused by the personal negligence or wilful act of the employer, or of some person for whose act or default the employer is responsible, nothing in this Act shall affect any civil liability of the employer, but in that case the workman may, at his option, either claim compensation under this Act, or take the same proceedings as were open to him before the commencement of this Act; but the employer shall not be liable to pay compensation for injury to a workman by accident arising out of and in the course of the employment both independently of and also under this Act, and shall not be liable to any proceedings independently of this Act, except in case of such personal negligence or wilful act as aforesaid . . (emphases supplied)

So the prototypical English Act contemplated that a worker injured by accident had a workers’ compensation claim. But it also went on to say that non-accidentally injured workers (or their statutory successors, in the case of death) could elect to pursue their employers in negligence (“civil liability”). The employee could not pursue both courses of legal action, and exclusivity applied except in the case of the employer’s “personal negligence” or “wilful act.” Read in this way, the term “accident” was simply acting as a foil to “negligence.” It had no independent significance as an exclusionary or “cost controlling” device.

It is true enough that the original architects of the language probably only had on their minds coverage of single-episode, traumatic workplace injuries. But it is difficult to draw from this fact that they meant not to cover, e.g., cumulative injuries. And precisely because cumulative injuries were not being considered, it is difficult to imagine that the “accident” element was originally meant to exclude them (or anything like them).

Maybe this does have a Covid connection. To the extent that Covid claims are deemed not to be covered by workers’ compensation (as occupational diseases or otherwise) because contraction of Covid is not an “accident” (leaving causation questions to one side), it is questionable that non-coverage is consistent with “what workers’ compensation was originally meant to be." The accident requirement (functionally an exclusion) may simply be a reflexive carryover from the original statute that we have not critically thought about – at least not critically enough. Who will be the last to die for an historical accident? 

Michael C. Duff

January 31, 2021 | Permalink | Comments (1)

Thursday, January 28, 2021

Can Workers’ Compensation “Work” in a Mega-Risk World?: The COVID-19 Experiment

I've just published a very short piece on the above-captioned topic in a just released issue of the American Bar Association's Journal of Labor & Employment law. You can access the piece here.

Michael C. Duff

January 28, 2021 | Permalink | Comments (0)

Monday, January 25, 2021

Letter to Congress From Labor and Activist Groups on Gig Economy -- Workers' Compensation Implications

To state the obvious, continued contraction of employee status in the national economy diminishes in importance all domains of employment law. Why would anyone need workers' compensation if we did not have statutory employees? The glib response to this concern is that the Gig economy is not nearly so expansive as "alarmists" contend. But if you take a minute to see what a nightmare data collection on "contingent" employees has been, you would be forgiven for doubting the doubters. In a nutshell, workers responding to BLS survey questions don't even know what they're being asked. And just as has been the case over the last year in the context of pandemic related unemployment estimates, official numbers have obscured the scope of the contingent workplace in the United States. Back in 2015, for example, the Government Accounting Office estimated the contingent workforce at a much higher figure (than those suggested by BLS figures) of 35.3 percent of employed workers in 2006 and 40.4 percent in 2010. Does anyone think the Gig economy has become smaller since 2010? Then of course there is the very fact that during the pandemic it was deemed necessary to create an entire unemployment fund substantial dedicated to compensating the unemployment claims of Gig workers -- you know, the part of the economy that is claimed to be smaller than what our eyes and experiences reveal anecdotally.

Well, people "on the ground with workers" know what is happening and I'll devote the remainder of this post to a letter written by some such folks. They are writing predominantly from a federal law perspective but the points apply with equal force to workers excluded from state workers' compensation laws. You can read it below the fold:

Continue reading

January 25, 2021 | Permalink | Comments (0)

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
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)

Saturday, November 28, 2020

Tardy Comment on Dismissal of Amazon Covid-Related Public Nuisance Case in New York

On November 1, Federal District Court Judge Cogan, of the Eastern District Court of New York, dismissed the public nuisance suit filed against Amazon in connection with its alleged unhealthy operation of the JFK8 Fulfillment Center in the context of Covid-19. I think I pretty accurately predicted the way the case would unfold in my blogpost on the dispute back on June 6. It seems clear that federal courts will reflexively defer to federal enforcement agencies, even if it is plain as the nose on your face that the agencies are not doing anything (or are doing very little). As the court noted, “The doctrine of primary jurisdiction seeks to maintain a proper balance between the roles of courts and administrative agencies.” The primary jurisdiction rationale is that courts should rely on “agency expertise.” The court went on to note that OSHA, “has the primary responsibility for setting and enforcing standards and providing research, information, education, and training to assure safe and healthful working conditions. OSHA has broad prosecutorial discretion to carry out its enforcement responsibilities under the Occupational Safety and Health Act . . .”

Thus far, only boilerplate; for the problem arises (as so often is the case in administrative law) when the agency is transparently not applying its expertise. Next, the decision moves into a phase of argument reducible to, just because the agency has not issued a Covid-19 standard does not mean it is not doing something; in fact, it did something when it decided to do nothing. (I sigh and recall Voltaire’s Dr. Pangloss). Next, the court reminds us that courts are not expert in workplace safety matters (see page 11 of the decision). But the question is whether a court trying to do something could do a better job than an agency ideologically committed to doing nothing. This is the elephant in the room. (I feel compelled to add that when I was a blue collar worker I was deeply skeptical about what OSHA was willing to do on its best days. I wonder how that question would be answered within the general community of workers if OSHA fines were expressed not in dollar amounts but as a percentage of the daily operating profit of the offending company. I think I know, but I apologize for digressing to the real point).

I will not go through the opinion line by line but I did want to mention for this audience that I said in my blog post of June 6: I suspect that the public nuisance claims of employees may eventually be barred by operation of the exclusive remedy rule. The court did not even go as far into the analysis as I thought it might.

First, the court said that “[b]oth plaintiffs’ concern and their risk [of being harmed by Covid] present a difference in degree, not kind, from the injury suffered by the public at large and thus is not actionable in a private action for public nuisance.” But even if a public nuisance claim were available, continued the court:  

The New York Court of Appeals has not considered whether the Workers’ Compensation Law’s exclusivity provision preempts a suit for injunctive relief. But the broad language of the exclusivity provision and the trade-offs embodied in the law compel me to conclude that the Workers’ Compensation Law bars plaintiffs’ . . . claim to the extent it is based on past harm. The “Labor Law codification of the requirement to provide a safe place to work does not overrule, and indeed, is subject to the exclusivity provisions of the Workers’ Compensation Law.” . . .  The exclusivity provision broadly states that the workers’ compensation scheme serves “in place of any other liability whatsoever” for an employer to an employee . . . It is difficult to imagine a broader phrase than “any other liability whatsoever.” If “liability” was not intended to include injunctive relief, as plaintiffs argue, then the statute easily could have substituted that word with “monetary damages,” “payment of compensation” or some other phrase. As plaintiffs note, the provision also discusses “damages, contribution or indemnity” and “compensation.” But the statute uses the broad word “liability” within an even broader phrase, and so I must conclude that it was intended to cover suits for injunctive relief in addition to suits for damages. This reading is further supported by the nature of the trade-offs embodied in the law. “Fixed compensation is guaranteed to the injured employee regardless of fault and in exchange for reducing the costs and risks of litigation to the parties.” . . . In exchange for the “security” of receiving fixed benefits, “the employee has been asked to pay a price in the form of the loss of his common-law right to sue his employer in tort.” . . . The purpose of the law therefore is not just to provide a mechanism for compensation, but also to protect employers from suit . . . Allowing plaintiffs to avoid preemption by seeking only injunctive relief would thwart the purposes of the statute and the trade-offs embodied in it.

One might criticize the federal court’s sojourn into New York state law to answer an undecided question (under state law) once it had reached an adequate ground of decision on federal primary jurisdiction. It is also curious why the court considered the question of whether public nuisance claims are subject to workers’ compensation exclusivity. After all, the court concluded there was no public nuisance. Why go further? But then, after going further, the court does not really address the critical question. As the court observes, the workers’ compensation scheme serves “in place of any other liability whatsoever” for an employer to an employee. The question is whether legislatures ever considered imposition of injunctive relief as a “liability” to which workers’ compensation exclusivity applies. As the decision implicitly acknowledges, plausible textualist arguments work both ways, and it seems to me resort to deep legislative history is unavoidable. I do not think you could find such history discussing the application of exclusive remedy to public nuisance, and I have discussed elsewhere the prickly doctrinal problems in trying to do so (see also here at Section 5.3). In any event, you do not have to reach that question if public nuisance cannot be established, so I am not sure why the court did. But if a court were to find that the harm, or risk of increased harm, or fear of harm or risk of increased harm, suffered by plaintiffs exceeded that suffered by the general public so much that it became a different type of harm, you could have a public nuisance. In that case, the question of conflict with exclusivity would have to be much more carefully considered.

The plaintiffs have appealed the case to the Second Circuit. My guess is that, given the new political dynamics, the Circuit will uphold on the primary jurisdiction question and find ruling on the state questions “unnecessary.”

Michael C. Duff  

November 28, 2020 | Permalink | Comments (0)

Thursday, November 19, 2020

Covid Culture Wars and Workers – Stuck in the Middle Again

A frozen yogurt dealer in Durango, Colorado offered customers discounts for not wearing masks. Someone in town thereafter apparently got upset and busted out the dealer’s front window. He, in response, apparently affixed a sign to his establishment: “I shoot to kill.” As an aside, workers work in that shop.

According to the Iowa Capital Dispatch, “[a] wrongful death lawsuit [against Tyson Foods] tied to COVID-19 infections in a Waterloo pork processing plant alleges that during the initial stages the pandemic,”

  •  In mid-April, around the time Black Hawk County Sherriff Tony Thompson visited the plant and reported the working conditions there “shook [him] to the core,” plant manager Tom Hart organized a cash-buy-in, winner-take-all, betting pool for supervisors and managers to wager how many plant employees would test positive for COVID-19.
  • John Casey, an upper-level manager at the plant, is alleged to have explicitly directed supervisors to ignore symptoms of COVID-19, telling them to show up to work even if they were exhibiting symptoms of the virus. Casey reportedly referred to COVID-19 as the “glorified flu” and told workers not to worry about it because “it’s not a big deal” and “everyone is going to get it.” On one occasion, Casey intercepted a sick supervisor who was on his way to be tested and ordered him to get back to work, saying, “We all have symptoms — you have a job to do.” After one employee vomited on the production line, managers reportedly allowed the man to continue working and then return to work the next day.
  • In late March or early April, as the pandemic spread across Iowa, managers at the Waterloo plant reportedly began avoiding the plant floor for fear of contracting the virus. As a result, they increasingly delegated managerial authority and responsibilities to low-level supervisors who had no management training or experience. The supervisors did not require truck drivers and subcontractors to have their temperatures checked before entering the plant.
  • In March and April, plant supervisors falsely denied the existence of any confirmed cases or positive tests for COVID-19 within the plant, and allegedly told workers they had a responsibility to keep working to ensure Americans didn’t go hungry as the result of a shutdown.
  • Tyson paid out $500 “thank you bonuses” to employees who turned up for every scheduled shift for three months — a policy decision that allegedly incentivized sick workers to continue reporting for work.
  • Tyson executives allegedly lobbied Iowa Gov. Kim Reynolds for COVID-19 liability protections that would shield the company from lawsuits, and successfully lobbied the governor to declare that only the state government, not local governments, had the authority to close businesses in response to the pandemic.

The company vigorously disputes the allegations. It has raised a Defense Production Act defense that should not succeed (but provided a basis for the company to remove the case to federal court). But Iowa passed a civil immunity law last June that “covers businesses that include meatpacking plants, hospitals and nursing homes. It limits suits by employees, customers and family members to cases involving coronavirus-related hospitalizations or deaths. They can also sue if they can prove a business owner intended to make people sick.” Colorado rejected such a law last summer, but a number of states have enacted them. (We’ll see if those “shields” stay in place once the body politic has a better idea of where the costs of illness have been shifted).

How do I like the Iowa wrongful death suit? Technically, I think employees intentionally injured by their employers are not covered by the exclusive remedy rule of the Iowa Workers’ Compensation Act. Brcka v. St. Paul Travelers Companies, Inc., 366 F.Supp. 2d 850 (S.D. Iowa 2005). (For a discussion of the difficulties workers face proving causation in Covid-related workers' compensation claims see here). On the one hand, I found an Iowa case this morning that somewhat incredibly held that the exclusive remedy rule applied in the case of a supervisor who killed an employee by punching him in the chest after becoming angered that the employee had revealed alleged sexual indiscretions between the supervisor and a co-employee of the deceased employee. Estate of Harris v. Papa John Pizza, 679 N.W.2d 673 (Iowa 2004). Technically, the deceased employee had consented to the “chest shot,” but how in the world could a nineteen year-old employee in such a power dynamic imbalance effectively have consented? So, no, I do not like the idea of these Iowa wrongful death claimants being caught up in the murky world of “intent” and "wantonness/willfulness" based on the little I have seen of Iowa law. And, of course, just because you "escape" workers' compensation exclusive remedy does not mean you will escape the Iowa civil immunity law.

The point? To be an “ordinary,” little-person worker in the employment jungle that has been emerging over the last two decades is generally a very dangerous thing (regardless macropolitical events on the national stage). To be an ordinary worker in the land of Covid, without realistic hope of legal or administrative remedy, is some significant order of magnitude more dangerous. My boss invites customers not to wear masks and takes bets on whether I will survive. Would any rational person enter into this kind of social contract? Do not laugh at me when I invoke the Constitution. This is simply appalling.

Michael C. Duff

November 19, 2020 | Permalink | Comments (0)