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.