Don’t bet on workplace safety

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Decent people reacted with shock and disgust to news of allegations that managers at a Tyson meatpacking plant in Waterloo, Iowa were making bets about the number of workers who would catch COVID-19.

The allegations were included in a wrongful death claim filed by the family of a worker who allegedly died from COVID exposure at the plant. Iowa allows workers to get around the limited compensation available under workers’ compensation if the employee can prove their injury was caused by the gross negligence of another employee.

If true, managers betting on employee COVID-19 exposure would likely be evidence of gross negligence. So besides another example of man’s inhumanity to man, what does the COVID-19 betting pool tell us about workers’ compensation and workplace safety?

Good alternatives to the exclusive remedy of workers’ compensation

Iowa is fairly unique in allowing for negligence suits for work injuries. In Nebraska, and most other states, workers compensation is the only way that employees can be compensated for a work injury.  Lawyers and judges use the term the terms “exclusive remedy rule” or just “exclusive remedy” to describe workers’ compensation laws  The so-called grand bargain of workers’ compensation is that workers don’t need to prove negligence by their employer to be compensated for a work injury. In exchange they receive limited benefits.

But workers’ compensation has proven largely inadequate to COVID-19 due to difficulties in linking COVID-19 exposure to the workplace. While some cases are being prosecuted by employees they are hard cases to win that are only feasible in cases of death or serious injury.  Benefits in death cases also rely on proving a formal marriage relationship and or evidence of supporting dependents. Not all injured workers fall into that category.

Worse, the exclusive remedy rule has largely ruled out legal workarounds to the exclusive remedy rule.

However, Iowa’s allowance of tort cases, with higher potential payouts in cases of work injuries and deaths from COVID seems like the best way for seriously injured workers and their families to hold employers accountable. And bluntly, it’s not that great of an option.

Some readers may ask, isn’t OSHA, Occupational Safety and Health Administration, supposed to regulate workplace safety? If workplaces were safe there wouldn’t be a need for lawsuits. But OSHA sidelined itself early in pandemic

How OSHA sidelined itself in the pandemic

In April, OSHA announced it would not enforce record keeping requirements for COVID-19 for employers such as packinghouses. I believe that this sent a signal that OSHA wouldn’t take the pandemic seriously. OSHA later reversed the policy and even issued a few citations. But OSHA’s slowness to respond to COVID-19 cost lives both on the job and in the communities around COVID-19 hotspot workplaces.

OSHA continues to refuse to specific rules about workplace safety and COVID. Sure, once the Biden administration finally takes over and gets going, OSHA might issue some standards. But even in a Democratic administration, the Department of Agriculture, who also regulates meatpacking plant may seek to weaken workplace safety measures implemented by the Department of Labor. For example, while the Department of Labor did some innovative enforcement of meat processing plants in the Obama administration, the Department of Agriculture allowed some packers to speed up processing lines. Faster lines correlate with more injuries.

Why local media is matters in covering workplace safety, part 2

The story about the COVID pool at Tyson was broke by a local journalism outlet in Iowa. This is the second straight week, I’m writing about a workers’ compensation issue first reported on by local reporters. Local reporters are essential in covering workers’ compensation because workers’ compensation is a state law. Also, many unsafe workplaces exist well outside journalist-rich cities like New York City and Washington DC. It’s important to have good reporters in places like Iowa and Nebraska to tell the stories of workers there.

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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