Tag Archives: COVID-19

A new federal thumb on the scale for COVID occupational disease claims?

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Last month the U.S. Department of Labor announced an emergency standard for COVID-19 safety for health care workers due to the risk of COVID-19 exposure.  The regulation may make it easier for workers in states like Nebraska to bring workers’ compensation cases for COVID-19 exposure on the job.

Nebraska allows workers to recover for occupational diseases in addition to injuries or conditions caught directly arising out of and in the course of their work duties. An occupational disease is one that is particular to an occupation or line of work. The Department of Labor’s findings about COVID-19 exposure in health care, could be a thumb on the scale for workers, or their surviving dependents, trying to bring a workers’ compensation claim.

While the new rule is helpful, it may not be game changing. Workers compensation laws are state laws. A federal regulation wouldn’t bind a state court or agency deciding a workers’ compensation case. Additionally, many states have passed COVID-19 presumptions under their state’s workers compensation laws for health care workers. This means that if certain classes of workers catch COVID-19, it is presumed to be work-related. This forces employers to show some non-work-related exposure to avoid liability,

Nebraska has not passed any sort of COVID-19 presumption for any workers.

Some employee and public health advocates have criticized the new standard as not covering more workers. I sympathize with that view. I will not blindly cheer for a Democratic administration. The Obama administration left a lot to be desired when it came to workplace safety issues – a lot. But the new COVID-19 standard for health care workers is an improvement on no standard.

Earlier in the pandemic, when Eugene Scalia was Labor Secretary during the Trump administration, the Department of Labor implemented rules that it made it harder for employees to track workplace COVID exposure. I can’t argue that a thumb on the scale for workers/labor is better than a thumb on the scale for management/capital. But the federal government needs to be more aggressive in enforcing workplace safety rules.

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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Yes, your employer can require you to take the COVID-19 vaccine

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Last week the United States Equal Employment Opportunity Commission (EEOC) affirmed that employers could require employees to receive the COVID-19 vaccine so long as they comply with the Americans with Disabilities Act and other anti-discrimination laws,

While most people were happy to receive COVID-19 vaccines, some can’t receive the vaccine because of either medical, religious reasons or pregnancy. Some just refuse to get vaccinated period.

So what options do employees who are unable or unwilling to take the vaccine have on the job?

On the flip side, do employees have legal protections against co-workers or employers who refuse to protect employees from the risk of COVID-19.

Employer-mandated vaccines

The health care industry has dealt with mandatory vaccinations in the context of the flu virus for years. In short, the accommodation, either for medical or religious reasons, was often to wear a mask.

Obviously, some employees refuse to wear masks. In fairness, the use of masks for flu prevention before the COVID-19 pandemic was questioned. There is also a strain of disinformation circulating on social media that goes along the lines of: I have a medical reason not to get vaccinated or wear a mask and under HIPPA no one can ask me for that reason. If they do ask, I can sue them. Another myth involved the 4th Amendment right to privacy which only applies to government and not private employers.

This is a blatant falsehood. Anytime a worker is asking for an accommodation for medical condition, whether a work injury or personal injury, the employee gives up a fair amount of privacy as to that medical condition. Yes, employers are required to reasonably accommodate disabilities under the Americans with Disabilities Act. But in order to ask for a reasonable accommodation an employee often needs to share detailed medical information with their employer.

So in short, if you refuse an employer request to take a vaccine, you need a good reasons and should be able to substantiate it and share that reason with your employer.

I am pro-vaccine. I also believe vaccination policy is a workplace safety issue for reasons explained below. But I feel some sympathy with those subjected to mandatory vaccines at work. Throughout the pandemic, business has denied liability for COVID-19 spread in the workplace. But if the reasons for mandatory vaccinations is employee and customer safety, how can business turn around and argue that they aren’t liable for COVID exposure in the workplace? It seems like the contradiction can be reconciled through employers desire to exercise dictatorial control over their employees in the workplace.

What about workplace safety

This post my seem like I’m being overly sympathetic to COVID deniers and anti-maskers. I’m not. I am very disturbed that these types have taken to social media to attack former OSHA deputy assistant secretary, Jordan Barab, for raising serious concerns about the lack of OSHA guidance in retail workplaces in light of the latest CDC guidance that states vaccinated people can go largely to unmasked indoors.

Workers who are still concerned about COVID-19 exposure are in a difficult spot. While workers in certain industries can sue employers directly for safety violations, workers in the retail industry cannot. They need to rely on state law claims if they want to take direct action. I think one good idea for legislation would be to create a whistleblower act for retail workers.

OSHA is starting to sue employers for retaliating against employees, but those suits are just now starting well over a year into the pandemic. While it’s good that OSHA is starting to bring cases on behalf of employers, OSHA only brings suits in a small number of cases where retaliation is alleged.

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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Employers can’t play the COVID card to get out of paying workers’ comp benefits

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During the height of the COVID-19 pandemic, it appears that some employers told their injured workers something to the effect of “I know you’re hurt and can’t do your job anymore. Normally we would have light duty for you, but because of the pandemic we don’t have work. So why don’t you just apply for unemployment.”

So what’s wrong with that scenario? The answer is that worker should be receiving workers’ compensation benefits – specifically temporary total or temporary partial disability benefits – when they are under a doctors care and unable to work because of an injury.

While the COVID-19 pandemic was and is a unique situation, the law has answered many of the questions raised by COVID-19 in earlier cases. At least in Nebraska, a plant closure or lack of overall work with an employer is not a legal defense to paying temporary disability benefits.

Temporary disability and unemployment during the pandemic

Normally workers compensation is a better deal for injured workers than unemployment for a few reasons. One, higher benefit rates and two the fact that workers’ compensation benefits are exempt from taxes while typically unemployment benefits are taxable.

But COVID-relief legislation has changed that equation somewhat. The federal government has supplemented meager state unemployment benefits and exempted some unemployment benefits from taxes. Nebraska law also prohibits workers from getting unemployment while collecting temporary total disability.

So, sure an argument can be made that an injured worker is better off on unemployment than workers’ compensation. But if a worker collects unemployment after a work injury, does that mean they can’t come back and collect temporary disability after an injury?

Collecting temporary disability and unemployment: timing is everything

Under Nebraska law a worker who collects unemployment after a work injury, but is denied temporary disability by their employer can be awarded temporary disability without it effecting what they collected in unemployment. So in some sense, you can double collect unemployment and temporary disability. But you can’t collect them at the same time. Timing is everything.

Conversely, an employee can claim unemployment after temporary benefits expire. Unemployment is one way to lessen the effects of the delay between the end of temporary disability and the beginning of permanent disability. But the delays in processing unemployment benefits caused by the pandemic make that a less effective strategy.

Permanent disability and unemployment

In theory a worker can collect permanent disability and unemployment together. I think a worker is on solid legal footing if they are collecting benefits for a scheduled member injury. An employee claiming workers compensation benefits on an injury on loss of earning power basis faces a more difficult time obtaining unemployment. Normally a worker needs to show they are able and available to work to obtain unemployment. It’s hard to square that with a claim you are permanently and totally disabled due the purposes of workers compensation.

Granted, during the pandemic unemployment benefits were paid out regardless of ability to work. However states have been aggressive in trying collect supposed overpayments of unemployment benefits back from citizens. Workers who collecting workers compensation benefits should be cautious in claiming unemployment and seek legal counsel before doing so.

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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Update: Nebraska placed on NYC-area COVID quarantine list

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This is an update of a post published on July 6, 2020

Americans can live and work where they want within the United States. But as I wrote last year, they aren’t free to claim workers’ compensation where they want. But true to form, COVID-19 has added another complication to this constitutional conundrum.

New York, New Jersey and Connecticut announced fines for residents who did not quarantine for 14 days after travelling to states with rising COVID-19 cases. New York, New Jersey and Connecticut added Nebraska to the quarantine list on July 21st.

The City of Chicago implemented a similar quarantine policy, but have not added Nebraska to their list of states.

In short, injured workers in those states face a 14-day quarantine if they forced to travel to Nebraska for their workers’ compensation case. The new quarantine will impact truckers who live in those states who got hurt working for Nebraska-based Crete Carrier and Werner.

A rock and a hard place for injured workers

I sympathize with and share the public health concerns of my friends and colleagues in New York, New Jersey, Connecticut and Illinois. But if COVID cases continue to increase and or more states start imposing quarantines, more injured workers are going be facing the prospect of a quarantine if they travel out of state for their workers’ compensation cases.

As enhanced unemployment benefits expire this month, a worker under quarantine faces a lot of uncertainty over income. This is especially true for an injured workers who may have already been facing financial hardship before the pandemic. Quarantines may give employers/defendants more leverage in settlement negotiations as well.

Alternatives to interstate travel?

Are there alternatives to in-person workers’ compensation hearings? Per Neb. Rev. Stat. 48-177, in Nebraska parties can agree to video hearings. But there is no way for a Judge to force a video hearing. Many lawyers and judges seem to prefer in person hearings when they need to weigh the credibility of witness testimony. Many workers’ compensation trials have the injured worker as the sole witness. But the credibility of the medical records submitted into the records often relies on the credibility of the witness.

Before trial, employers will often depose or question injured workers. Courts have more power to force video or telephonic depositions. So an out of state worker is more likely to avoid a trip back to Nebraska for a deposition. But I have had out of state clients compelled to travel to Nebraska for depositions.

Travel within Nebraska

In the wake of the COVID-19 pandemic, I have seen more efforts to move depositions from central and western Nebraska to Lincoln. Within Nebraska, employers have less power to compel an injured worker to travel long distances for trial or deposition. At the IRS mileage rate, the cost of driving across Nebraska can equal the cost of air travel to a regional air hub like Denver or Chicago.

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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Feds prosecuting COVID fraud by employees

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My jaw dropped last Tuesday when I read a blog post by Ohio-based management defense attorney Jon Hyman.

Hyman posted the Department of Justice criminally charging an employee for allegedly defrauding his employer by submitting a forged doctor’s note stating he had COVID-19. Human Resources and management-side defense social media share a near obsession with Family Medical Leave Act (FMLA) fraud by employees.

So why can HR now sic the FBI on employees who forge  off-work notes?

The CARES Act, interstate commerce and taxing power

The answer to this question is the CARES Act. Passed in response to the COVID-19 crisis, the CARES Act amended the FMLA to provide some employees with paid leave related to COVID-19. The CARES Act also used federal funds to expand unemployment benefits related to COVID-19.

Normally state law would govern the prosecution of small-time workplace fraud under crimes like forgery and unemployment fraud. But a federal bailout creates federal criminal jurisdiction. The United States Department of Justice is aggressively prosecuting COVID fraud. Some employer-advocates question the use of the federal power to regulate interstate commerce for the good of employees. But the interstate commerce clause also expands the ability to federalize crime. It seems like employer-advocates are welcoming the expansion of federal authority to prosecute fraud by employees.

Federal taxes partially fund unemployment benefits. This would give the federal government the power to federalize unemployment fraud through the taxing power granted to Congress by the Constitution.

The real COVID fraudsters

The Georgia case is the first known incident of an employee being prosecuted for forging a medical note. COVID-related fraud mirrors workers’ compensation fraud in that most fraud is not committed by employees.  Apparently organized crime is submitting false unemployment claims. Some individuals and businesses are falsely submitting claims under the Paycheck Protection Program. If an employee suspects their company is abusing the Paycheck Protection Program they could bring a claim under the False Claims Act.

But while low level employees are not committing the vast majority of COVID fraud, low-level employees are the easiest to prosecute. Prosecuting low-level employees for COVID fraud serves at least two purposes for employers.

Reopening and unionizing

As the perceived threat of COVID recedes, many businesses are reopening and employees are returning to work. Employers complain that some employees are reluctant to return to work because of enhanced unemployment benefits. However many employees are expressing safety concerns about COVID exposure. Publicizing the prosecution of COVID fraud by employees calls into question the legitimacy of employee safety concerns. Criminalizing COVID fraud by employees also allows employers and their mouthpieces in the media to portray workers worried about COVID as welfare cheats.

The use of state power on behalf of employers against employees serves another purpose. Mike Elk of Payday Report tracked walkouts and strikes related to the COVID 19 pandemic. Management-side pundits are also expressing concern about rising pro-union sentiments by employees.  Prosecuting employees is one way to intimidate employees who want to form unions or engage in collective action in the workplace.

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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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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