Why civil rights laws tolerate racial discrimination in the workplace

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The murder by Minneapolis Police of George Floyd sparked clashes between protesters and police this weekend in Nebraska and nationally. Elected officials in Lincoln and Omaha imposed almost unprecedented curfews attempting to quell violence.

The protests focused some attention on the problems with civil rights laws in remedying police violence against people of color. But, civil rights laws are also flawed when it comes to discouraging discrimination on the job.

“But for” and “motivating factor”

An employee must show their employer used race as motivating factor to win a racial discrimination case under state or federal law. The law distinguishes “motivating factor” from the more permissive “contributing factor” standard. Legally an employer could get away with being sort of racist in making an employment decision, so long as they weren’t too racist.

The United States Supreme Court recently increased the quantum of legally tolerated racism towards African-Americans. In the Comcast decision, the Supreme Court held African-Americans must prove race was a “but for” factor to win under 42 USC 1981. Plaintiff’s face an even steeper burden of proof in proving a “but for” factor rather than a motivating factor.

42 USC 1981 outlaws racial discrimination in contracting – including employment. But Section 1981 does not require claimants to file an administrative charge and has a four year statute of limitations. Title VII has a 300 day statute of limitations and requires claimants to file a charge of discrimination with a civil rights agency. Weakening the substantive protections of 1981 undercuts the procedural advantages of bringing a 1981 claim.

Reasonable inference or speculation?

Civil rights laws still pack some punch in stopping racial discrimination at work. The law tolerates some level of racial discrimination in employment. But it is up to a jury to weigh how important racial discrimination was in an employment decision. That is an expensive and risky proposition for an employer. A judge shouldn’t dismiss a case on summary judgment, if an employee shows race was a contributing factor in their termination.

On summary judgment, judges are supposed to give employees the benefit of reasonable inferences. But what one person views as reasonable inference another might view as speculation. Speculation won’t beat a summary judgment motion.

Contributing factor causation would take the guesswork out of summary judgment motions in employment discrimination cases.  The increased likelihood of a jury verdict in a racial discrimination claim would force employers to increase vigilance in preventing racial discrimination in the workplace.

Implementing contributing factor causation in employment discrimination cases and abolishing qualified immunity in police brutality cases won’t make racism disappear. But those proposals are at least concrete measures that would lessen the effects of racism in this country.

I believe it’s important to state that appellate court judges have written these causation standards into civil rights laws. But what judges do, legislators can undo. I hope the undoing starts in Lincoln and Washington DC soon.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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OSHA reverses course on COVID-19 reporting

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In what amounts to a reversal of policy, the Occupational Health and Safety Administration (OSHA) is requiring most employers to record possible COVID-19 exposure on the job. OSHA’s reversal will make it easier for workers to prove workers’ compensation claims for COVID-19 exposure.

Per OSHA requirements, employers must conduct a basic investigation about the potential causes of COVID-19 exposure. Employers must give employees any OSHA reports, upon request, about their work-related injury or illness.  Employees should also be able to obtain OSHA reports through discovery in a workers’ compensation case or from a union representative.

OSHA’s reversal increases the chances that state workers’ compensation agencies and courts will report better information about COVID-19 exposure. As I wrote in April, employers tend to blur state and federal reporting standards.

OSHA’s reversal on COVID-19 reporting coincides with the AFL-CIO suing the agency to impose stricter standards for COVID-19. In addition to the AFL-CIO suit, a workers’ group sued meatpackers over the public health effects of COVID-19 outbreaks at packinghouses. The reversal of policy also coincides with a group of state attorney generals suing Amazon over workplace COVID-19 data.

More federalization of workers’ compensation

But while OSHA’s actions place a small thumb on the scale for workers’ rights, the specter of federal immunity for COVID-19 workers’ compensation claims lingers. The Senate has yet to take up the latest COVID-19 bailout package passed by the House of Representatives.

But there may be some somewhat positive federal legislation impacting state workers’ compensation law. Rep. Joe Kennedy III (D. Mass) introduced a special fund that would compensate essential workers and their families effected by COVID-19 through a federal program. This legislation is modeled on a federal fund for workers killed and injured due to the September 11, 2001 attacks.

Another bit of good news is that the Senate passed a presumption for death benefits for first responders killed in the line of duty duty related to COVID-19. In my view, general federal immunity for workers’ compensation can co-exist with a presumption of compensability for first responders. I, and other workers’ compensation bloggers/commentators have written frequently about a two-tier workers compensation system. Legislators tend to favor first responders like police and firefighters. This political favor leads to the benefit of presumptions of coverage for certain injuries and protections for ‘mental-mental” injuries unavailable to less favored workers.

The rise of the essential worker?

Workers like retail workers belong to the second or less favored tier — or at least they did before COVID-19. COVID-19 has introduced the concept of the “essential worker” into mainstream discourse. Many states have looked to include essential workers in enhanced workers’ compensation laws for workers exposed to COVID-19. I’ve been writing about and advocating for these workers for years. But I guess it takes a public health crisis to recognize the importance of retail, warehousing, delivery and meatpacking workers.

Legislative changes in Nebraska?

Last week, Nebraska announced it will re-start our Legislature on July 20th. The Unicameral generally adheres strictly to unwritten norms about deference to committees. Generally, a bill about expanding workers’ compensation benefits would be discussed in the Business and Labor Committee. But the COVID-19 crisis is a highly unusual situation. It will be interesting to see if there are any COVID-19 related changes to workers’ compensation laws made when the legislature restarts.

COVID-19 related changes to workers’ compensation may have to wait until next year in Nebraska. Of course there could be a different legislature depending on the outcome of November’s elections. This is all the more reason to research, vote for and support legislative candidates who support expanding workers’ compensation.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Pandemic exposes problems with outsourced leave and disability

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The COVID-19 pandemic is exposing the deep flaws of unemployment insurance, workers compensation and the employment at-will doctrine. The pandemic also shows problems with how family and medical leave is administered.

Outsourced leave administration

Many large employers outsource FMLA leave eligibility decisions. Often times the leave administrator also decides whether an employee receives short-term and long-term disability. Even in normal times,  outsourced leave companies will miscalculate leave eligibility for employees. I believe this happens because the leave and disability companies aren’t communicating with HR departments. I’ve also heard from employees about faulty leave administration software.

Bad communication between leave administrators and HR departments leads to employees losing their jobs. Sure an employee can sue their former employer, but litigation is time consuming and uncertain.

But if even if leave companies and human resources departments are communicating, they may not be acting in good faith. Again, even in normal times human resources departments and leave administrators often hassle workers about insufficient documentation about the need for FMLA leave.

So, how does this pandemic make this bad situation worse.

Outsourcing leave during a pandemic

There are several reasons why leave administration falls short during a pandemic. First, more people will be taking leave either for themselves or take care of a family member. Congress has also expanded eligibility for family and medical leave benefits. As a result, like with unemployment, more people will be making demands for leave. This will slow down the process.

But, this heightened demand for leave could be met with a reduced response by leave administrators. The people employees rely on to process leave claims tend to be working at home.  Working from home has slowed down the processing of insurance and other claims.

Finally, family and medical leave requires medical documentation. Workers often stumble in completing required paperwork. But during a pandemic, doctors may lack the time to fill out paperwork. Despite this difficulty, the Department of Labor disagreed with the Centers for Disease Control and required employees to provide medical documentation of COVID-19 leave.

Why does leave administration stink so bad?

Family and medical leave administration sucks so badly for employees because it’s often tied to private disability insurance. Like workers’ compensation, private disability is a for-profit social insurance program. But unlike workers’ compensation , there is weak judicial accountability for denials of private disability.

Bluntly I believe the disability insurers use leave administration as a way to sell disability policies to employers. While disability policies can be useful for workers, insurers would rather collect premium than pay claims. Many employees would rather shift the cost of work injuries onto disability insurance.

When it comes to long-term disability policies, employers and insurers share goals when it comes to cost-shifting. Many long-term disability policies require covered employees to apply for social security disability insurance (SSDI). Policies often include language that lead the insurers recoup disability benefit payments if employees receive SSDI. This leads disability insurers file SSDI on behalf of employees even if they never decided to apply. I would expect to see this practice increase as unemployment increases to levels not seen since the Great Depression.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Local reporting of packinghouse COVID-19 cases nixed. Why workers’ comp. reporting may not fill the information gap

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The JBS Swift plant in Grand Island, Neb. Governor Pete Ricketts refused a request from local health officials to shut down the plant (Photo by KTIC Radio)

News Channel Nebraska reported last week the State of Nebraska would no longer report COVID-19 exposures from individual meatpacking plants.

Five Nebraska counties with major meatpacking plants – Dakota, Dawson, Colfax, Hall and Saline, ranked in the top 31 of highest per capita exposure to COVID-19, the New York Times reported last Thursday.

Nebraska Governor Pete Ricketts cited confidentiality concerns as the reason for the order.  But, Ricketts decision seemed geared towards deflecting widespread criticism of meatpacking houses for their role in spreading COVID-19. Pro Publica reported last week that Ricketts refused a request from public health officials in Grand Island to shut down a JBS Swift plant over COVID-19 concerns.

Workers’ comp. and COVID-19 exposure reporting

But while public official will no longer report COVID-19 exposure by meatpacking house, those plants are still required to report possible COVID-19 exposures to the Nebraska Workers’ Compensation Court. Those so-called First Reports of Injury are public record. But those records may not be accurate for two reasons.

First, many companies like to under-report work injuries. This practice pre-dates the COVID-19 pandemic. Employers under-report work injuries as a a a way to suppress claims. In Nebraska, the penalty for claims suppression is minor.

Secondly, OSHA guidance appears to exempt meatpackers from having to log COVID-19 exposure as an occupational injury. Standards for logging an injury for OSHA and reporting it to the Nebraska Workers’ Compensation Court tend to blur. Because of the guidance from OSHA, I suspect companies will under-report work injuries to state workers’ compensation courts.

Workplace safety and public health

The prevalance of COVID-19 in packinghouse towns has lead the general public to connect public health and workplace safety. The issue of workplace safety will need all the attention and public support it can garner. It appears as if corporate American wants to protect companies for COVID-19 exposure litigation. I believe this immunity could cover workers’ compensation.

A public nuisance suit filed against a Smithfield Foods plant in Missouri highlighted the link between workplace and public health. In the suit, community members sued Smithfield for the role it played in spreading COVID-19 in the area surrounding the plant.

But last week, a federal judge dismissed the case and ruled that any challenges to Smithfield safety practices would have to be filed with OSHA. In a blog post, University of Wyoming Law Professor Michael Duff called the decision a “mood point” indicating a potential “unreflective, anti-liability fervor enveloping the Great Reopening”.

I agree with Professor Duff. The unwillingness of courts to push the envelope for workers’ rights predates the COVID-19 pandemic. State and federal elections are coming up in six months. For once issues like workplace safety may be at the forefront of the discussion during campaign season.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Immunity by executive order probably isn’t constitutional, but beware of federal immunity for COVID-19 in workers’ compensation

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The Supreme Court held that Harry Truman overstepped his authority under the Defense Production Act in Youngstown Sheet and Tube

Last week, President Donald Trump signed an executive order shielding meatpacking firms like Tyson from legal liability over COVID-19. Trump’s order was based on the Defense Production Act (DPA).

Seeing the forest from the trees

From a legal perspective, the order is unenforceable. But getting bogged down in the legal weeds misses an important point about the order. The President of the United States has stated that packinghouses are immune from liability under the law for COVID-19 exposure. Regardless of the legal technicalities, that statement will likely discourage workers from filing workers’ compensation claims against meatpackers. I also fear managers of those plants will use the order as an excuse to shift the cost of COVID-19 exposures onto enhanced unemployment or short-term disability policies if workers file those claims.

Executive orders and Youngstown Sheet and Tube

Federal courts have held that the Defense Production Act does not immunize corporations from tort claims. Furthermore, in order to invoke the Defense Production Act, it would appear a company needs to be performing an actual government contract. The DPA fails to shield companies that are just producing their product for the private market.

But even if the DPA applies to meatpackers during the COVID-19 pandemic, the President has limited powers under the DPA. In 1952, President Harry Truman tried to use the DPA to force steel production during the Korean War. In Youngstown Sheet and Tube v. Sawyer, the Supreme Court held that since Congress had not specifically authorized such an order that Truman’s order was unconstitutional. Cheap meat during a pandemic is hardly the national security crisis that a shortage of steel during a major war.

Legally, this executive order immunizing packinghouses from COVID-19 claims should be filed in a recycling can. But corporate America is already planning to immunize itself from litigation from COVID-19 in a way that could be enforceable. I also believe these efforts will be aimed at workers’ compensation.

Federal legislation and COVID-19 immunity

The legal problems with Trump’s order on immunizing meatpacking plants under the DPA is the lack of Congressional authority. However, the Senate is proposing legislation that would prevent consumers and employees from suing corporations for exposure to COVID-19

Opponents of this legislation, point out, like I have earlier, that suits against businesses for COVID-19 are hard to prove. Opponents of the legislation also argue like I have earlier, that workers’ compensation already limits the liability of corporations for COVID-19 exposure from their employees.

My guess is that many readers of this blog possess some expertise in the workers’ compensation and workplace law general. I can imagine those readers saying something a long the lines of “Even if McConnell’s federal tort reform plan gets past Nancy Pelosi, there is no way it would apply to workers’ compensation. Workers’ compensation is a state issue.”

I believe this argument amounts to wishful thinking.

The 10th Amendment and workers’ compensation

Most workers compensation lawyers would argue that that two propositions would prevent Congress from giving federal immunity to employers under state workers’ compensation laws for COVID-19 exposure. One, workers’ compensation laws are enacted under 10th Amendment police powers. Workers’ compensation is also a law regulating insurance. State law generally governs insurance under the McCarran-Ferguson Act.

But federal and state courts have questioned the applicability of state workers’ compensation laws in regulating air ambulance charges. In technical legal jargon, state workers’ compensation laws have been mostly preempted by federal law on air ambulance charges because regulation of air ambulances is a matter of federal law. I believe the air ambulance charge cases could persuade courts that federal immunity for COVID-19 litigation would apply to workers’ compensation cases.

The 10th Amendment and state quarantine orders

The 10th Amendment is also the constitutional authority state governors and local officials rely upon for stay at home orders. President Trump has attacked some Governors for invoking that authority to impose quarantine or shelter in place order.

But more importantly, Attorney General William Barr has stated the Department of Justice will question state laws related to COVID-19 that unduly inhibit national commerce. Barr seems to be reviving the concept of the “dormant commerce clause”. Federal courts used the dormant commerce clause to overturn state laws regulating the workplace in the Lochner era.

I believe corporate America and their political allies will use federal legislation to undercut state workers’ compensation laws. Advocates fro injured workers should stay vigilant during this crisis.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Holding meatpackers accountable for COVID-19 cases with public nuisance litigation

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The JBS Swift plant in Grand Island, Neb. is at the center of a COVID-19 outbreak in that community. (Photo credit to KTIC Radio)

The New York Times reported on a public nuisance lawsuit filed against Smithfield Foods for COVID-19 exposure created by a pork processing plant in Milan, Missouri.

What’s novel about the public nuisance suit is that it sues Smithfield for its effect on the surrounding community, not its employees.

Meatpacking plants are a hotbed of COVID-19 exposure in small cities and rural areas across the country. In Nebraska, workers at JBS Swift in Grand Island and Tyson in Lexington have high rates of COVID-19 exposure. Reports trace nearly 40 percent of COVID-19 exposures in Grand Island to JBS.

The Missouri case against Smithfield describes how fast line speeds help spread COVID-19. Workers and their advocates have long expressed concerns about line speed in meat packing plants. Line-speed is related to widespread joint and muscle injuries in packinghouses.

In my job, I spend a fair amount of time in both Grand Island and Lexington litigating against JBS and Tyson. Because of that experience, I’ve watched in anger/horror as COVID-19 tears through these communities. In my view, the same indifference that Tyson and JBS show about joint and muscle injuries has been shown about COVID-19.

Skirting the exclusive remedy of workers’ compensation

Part of my anger about COVID-19 in Lexington and Grand Island goes to the difficulty of recovering workers’ compensation benefits for COVID-19. Workers’ compensation laws provide little deterrent for packinghouses to limit COVID-19 exposure. Even if an employee can prove on the job exposure, workers can collect limited benefits from workers’ compensation. Workers’ compensation benefits are limited because employees are supposed to collect them without regard to fault.

Limited in benefits in exchange for not proving fault is at the heart of the so-called grand bargain of workers’ compensation. Workers compensation benefits are generally the exclusive remedy employees have for workplace injury and illnesses.

But a public nuisance claim skirts the problems with workers’ compensation laws. A public nuisance claim sues the packinghouses not for how they treat their workers, but for how their treatment of their workers effects the surrounding community. Exclusive remedy means that the workers can only sue their employers for a workplace injury or illness under workers’ compensation. Workers can only collect limited benefits from workers’ compensation.

Public nuisance is a legal theory that the packinghouses know well. Environmental advocates successfully used the tactic against a Smithfield subsidiary in North Carolina. I hope worker safety advocates obtain a good outcome in the Missouri case. I hope these suits spread to plants in other states.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Hard but not impossible: COVID-19 workers’ compensation claims

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Photo courtesy of QZ.com

An employee exposed to COVID-19 at work is likely limited to collecting workers’ compensation benefits. COVID-19 exposures are difficult workers’ compensation cases that have been made more difficult by guidance from the United States Department of Labor.

But difficult doesn’t mean impossible. Some COVID-19 exposures could lead to death, serious injury and or extensive medical expenses.  Here is how I think workers should pursue workers’ compensation benefits for COVID-19 exposure

What kind of COVID-19 workers compensation claims are worth bringing

Nebraska awards substantial workers’ compensation benefits to the survivors of workers who die due to work-related causes. Severe but not fatal cases of COVID-19 that lead to hospitalization can lead to substantial medical expense. COVID-19 can also have permanently disabling effects. In Nebraska, loss of function from COVID-19 is paid on how the injury impacts a workers’ ability to earn a living.

While a mild case of COVID-19 probably wouldn’t justify bringing a workers’ compensation claim, COVID-19 symptoms may flare up in the future. So regardless of the severity of the COVID-19 exposure, it would make sense for a worker who thinks they got COVID-19 on the job to investigate how they may have gotten the virus.

Playing amateur detective

Most COVID-19 cases will likely be proved by circumstantial evidence. This means that workers should try to rule out non work-related exposure and rule in work-related exposure. This may be challenging because workers who are likely to exposed to COVID-19 on the job are also likely to have friends and family members who have been exposed to COVID-19 who could have exposed them to COVID-19 outside of work.

Workers who have been exposed to COVID-19, or their friends and family, need to do the leg work to gather the facts about possible COVID-19 exposure before memories fade and supporting documentation disappears.

Why you will probably need an attorney to pursue a COVID-19 workers’ compensation case

I believe insurers and employers will deny most COVID-19 workers’ compensation claims for two reasons. One, the cases are hard to prove. Two, many insurance policies apparently have virus exclusions. A lawyer can help a worker, or the family of a worker, exposed to COVID-19 gather facts to support their case.

In Nebraska, lawyers can subpoena documents from employers as well as serve written questions called interrogatories, requests for admissions and requests for production to help prove up a case for COVID-19 exposure on the job. Lawyers can also take depositions. I’ve written before how some employers will likely cover up and under report COVID-19 exposure. But in Nebraska employees should have the ability to obtain absence logs, occupational health records and other information outside of typical injury reports that could circumstantially prove COVID-19 exposure on the job.

I think lawyers pursuing workers’ compensation claim related to COVID-19 in Nebraska need to file petitions and serve discovery as soon as possible. COVID-19 claims will likely require more factual investigation than a typical workers’ compensation case.

Cooperation from co-workers and fear of retaliation

To some extent proving COVID-19 should be covered by workers’ compensation will probably require some cooperation from co-workers. Concerns about retaliation from an employer are legitimate. I’ve also criticized what I think are the weakness of retaliation laws recently. But Nebraska law outlaws retaliating against employees who claim workers compensation benefits. Does that protection extend to co-workers who assist in a workers’ compensation claim? I’m not sure, but recently a federal judge interpreting Nebraska’s workers’ compensation retaliation law held that the law provides broad protections.

Good facts also make good law. What that means is a co-worker who gets fired for helping a co-worker get workers’ compensation benefits may create law that formally extends the protections of workers’ compensation retaliation in Nebraska.

Though mainstream media has not widely reported this news, credible outlets like Payday Report and Law 360 have reported about widespread strikes and employee walkouts over COVID-19 safety related concners. So far, no walk outs have been reported in Nebraska. But supporting a co-worker in a workers’ compensation claim is an act of solidarity like a walk out or strike. The ability for workers to recover workers compensation benefits for COVID-19 exposure may require acts of solidarity.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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OSHA guidance on COVID-19 reporting could make it harder to prove workers’ compensation claims

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Bloomberg Law reported that the federal Occupational Safety and Health Administration (OSHA) will not require non-medical and non-first responder employers to report possible COVID-19 exposures in the workplace.

OSHA’s decision on limiting reporting of potential work-related COVID-19 exposure could make it harder for workers to have COVID-19 exposure covered by state workers’ compensation laws. It will likely also make it more difficult to track exposure to the virus.

Injury reports and proving job-related exposure to COVID-19 through circumstantial evidence

Even if OSHA does not require most employers to report possible COVID-19 exposure, employers would still have to report possible COVID-19 exposures on the job to state workers’ compensation courts and agencies. However, many employers effectively use federal standards for recording an injury for reporting injuries to state workers’ compensation agencies. OSHA’s ruling may lead employers to under report possible COVID-19 exposures to state agencies.

In a blog post last week, Thomas Robinson wrote that many workers exposed to COVID-19 on the job will have to rely on circumstantial evidence to have COVID-19 exposures covered by workers’ compensation. But if employers aren’t required to log potential COVID-19 exposures, then it will be more difficult for employees to build their workers’ compensation cases with circumstantial evidence of other potential COVID-19 exposures in their workplace.

In theory employees could rely on state workers’ compensation reports to build a circumstantial case. But the lack of a federal reporting requirement may mean that employers don’t report potential COVID-19 exposure to state authorities.

Difficulties of tracking COVID-19 through medical records and billing

State workers’ compensation laws may provide another way to track the effect of COVID-19. Medical providers tend to ask about the cause of a medical condition or injury for the purposes of medical billing.  Knowing which COVID-19 cases were billed to workers’ compensation would be one way to track occupational exposure to the virus.

But there are problems with this approach. Doctors usually need to rely on patient history in order to determine whether an injury or illness is related to work. A worker may be unaware of how they contacted COVID-19.  Evidence that other workers were potentially exposed to COVID-19 may help doctors make that determination.

However, getting additional information to medical doctors and asking them to link an injury or illness to work duties is time consuming and often expensive. Sometimes a doctor will expressly conclude that an injury or illness was caused by work in their medical records. But with the advent of electronic medical records, it is less common to find causal statements in the body of a medical records. Unhelpful medical records will probably make it more difficult for workers’ compensation lawyers and public health authorities to investigate the causes of COViD-19 exposure.

COVID-19 and a two-tiered approach to workplace safety

I am disturbed by OSHA’s decision to limit reporting of COVID-19 by employers. The reason behind the decision is that many employers complained it’s difficult to determine if COVID-19 is caused by work. I agree that it will be difficult to cover COVID-19 cases under state workers’ compensation laws. But, filing an OSHA 300/301 report or a First Report of Injury in Nebraska isn’t an admission that an injury or illness is work-related.

Workplace safety advocates rightfully believe that this move by OSHA will make it more difficult to track COVID-19 exposure in the workplace to the detriment of retail, delivery, warehousing, transportation and food processing employees who are vulnerable to COVID-19 exposure.  In his blog post about proving up COVID-19 cases, Tom Robinson wrote passionately about how first responders and health care employees were getting more workplace safety protections than retail, delivery, transportation and food processing employees.

The two-tiered approach to workplace safety predates the COVID-19 pandemic. Lowly paid retail employees are routinely subjected to violence on the job, but they usually aren’t eligible for workers’ compensation benefits for strictly mental injuries or “mental-mental” injuries. By contrast, first responders are eligible for mental-mental benefits and a growing number of states are giving first responders a presumption that mental injuries are work-related. The COVID-19 pandemic is throwing these pre-existing divisions into starker contrast.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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