Tag Archives: COVID

What the new OSHA rule on vaccinations means for workers’ compensation and employment law?

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President Biden stated last week that the Occupational Health and Safety Administration (OSHA) will implement a rule that employers with more than 100 employees will be subject to fines if they do not require COVID vaccinations or test employees for COVID on a weekly basis.

The new mandate raises many issues about workplace law that I touch on below:

Workers’ compensation: Employees who are injured through employer-required testing or vaccination would clearly be covered by workers’ compensation. In  order for an injury to be covered by workers’ compensation, an employee needs to be doing something in the course of their employment duties for the benefit of their employer.

Before mandated vaccinations and testing, maybe employers could argue that COVID testing and vaccinations injuries weren’t covered by workers compensation. But mandates firmly shut the door on what I think is a semi-specious argument.

Workers who suffer a reaction from a vaccine aren’t limited to workers’ compensation. They have one year to make a claim against a federal vaccine fund. But employers who pay workers compensation benefits for a vaccine may claim repayment or subrogation from payment from a vaccine fund.

Whistleblower: OSHA will likely rely on whistleblowers to enforce the rule. While there is no general federal right for an employee to sue their employer for retaliating against them for not complying with the mandate, Nebraska has a general whistleblower law that gives employees that right. An employee in Nebraska who was retaliated against for reporting non-compliance with the vaccine mandate has 300 days to either file a charge with the Nebraska Equal Opportunity Commission or file directly in state court.

Workers in certain industries could also have a federal right to sue their employer for not enforcing vaccine and testing requirements.

Americans with Disabilities Act: (ADA) The new employer-mandate still gives some employees the right to opt out of vaccinations under the Americans with Disabilities Act. Vaccine mandates have been part of health care employment for years. Those employees who were exempted from vaccine requirements previously still should be exempted from the new mandate

But as more workplaces are covered by vaccine mandates, I would expect more employees who try to claim exemptions. I would anticipate courts aren’t going to be terribly sympathetic to most of these claims barring a strong medically-related reason for vaccine refusal.

Wage and hour law: The new mandate gives employees paid leave for vaccination side effects.  The Fair Labor Standards Act (FLSA) also requires that employers pay employees for time spent on employer-ordered medical care. I anticipate some litigation arising out of this law – particularly if employers force employees to get vaccinated or tested outside of regular work hours.

Is the mandate legal?  Fatima Hussein did a good write up on the issue for Bloomberg Legal. Per her article, the mandate is probably constitutional under the interstate commerce clause. But employers may have some grounds to challenge the rule because OSHA may have jumped the gun in implementing the rule without due process.

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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The obvious and less obvious implications for employer-mandated vaccinations and workers’ compensation

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Last week Tyson Foods, a major employer in Nebraska, announced they would mandate vaccines for all employees. Employer-mandated vaccines have some obvious and less obvious implications for workers’ compensation.

If an employee is injured or has a bad reaction to a vaccine mandated by an employer, that should be covered by workers’ compensation.  Employer-mandated vaccines take away the legal question of whether an employee who has a bad reaction to a vaccine would be covered by workers’ compensation.

But I think the more interesting question is what happens when a vaccination makes an injury worse. This question is particularly pertinent to issues like reactive arthritis which studies show can be aggravated by the COVID-19 vaccine.

In Nebraska, occupational and non-occupational causes can combine to cause a disability. This is consistent with Nebraska’s permissive contributing factor causation standard. But in other states with less permissive causal standards than Nebraska, an aggravation of an injury from a COVID vaccination may not be covered by a workers’ compensation statute.

Fortunately, workers in states where vaccine injuries may not be covered by workers’ compensation may be able to claim compensation through a federally-run fund that pays for vaccine-related injuries. It’s also possible that workers can collect both workers’ compensation benefits and vaccine fund benefits for work-related vaccinations or work injuries aggravated by vaccines.

I could see some employers trying to use the vaccine fund to pull a federal get-out-of-state-based-workers-compensation-laws card. For example, Tyson Foods attempted to argue federal law protected them from an Iowa state law claim stemming from managers betting about COVID deaths at an Iowa plant.

Long story short, I feel like there will be a lot of novel litigation in this area of the law over the next few years.

Of course, COVID vaccinations raises public policy and political questions in addition to legal questions. Studies show that 75 percent of unvaccinated people are low income. Lack of time to deal with side effects and fear about the side effects may be discouraging people from getting vaccinated. I believe workers need paid leave to deal with vaccination side effects. I also think job protection benefits similar to but separate from FMLA would be helpful.

At the beginning of the pandemic, law makers were eager to expand FMLA and paid leave through the FFCRA. While the FFCRA was extended earlier this spring to cover vaccine side effects, it still fails to cover many workers and it expires at the end of September. However nearly a year and a half into the pandemic there seems to be COVID compassion fatigue among policy makers.

In short, there may not be many carrots offered by the government or employers to get vaccinated. Meanwhile, it seems like employers are starting to mandate vaccinations. But while lawmakers may be slow to provide benefits to workers to get the COVID vaccine, I could certainly see legislation at a state level that would exempt employers from paying workers’ compensation benefits from vaccine reactions.

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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How essential workers are excluded from the “grand bargain” of workers’ compensation

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If you asked the average person on the street, “If convenience store clerks at the same store were subjected to violent crimes, including murder, three times in the last five times, do you think you could bring a negligence case if the store failed to protect its worker from a violent attack ?” Most people would say yes.

Candidly, many people with legal training would say the same yes, but for the exclusive remedy of workers compensation.

The exclusive remedy rule is at the heart of the so-called “grand bargain” of workers compensation that provides limited benefits in exchange compensation regardless of employee or employer fault.

Like most workers compensation lawyers, I can recite that last paragraph in sleep. But sometimes employer-conduct can and should cause workers compensation lawyers to put aside technical legal thinking.

The convenience store I described in the first paragraph is the Kwik Shop at 14th and Adams in Lincoln, Nebraska. A clerk at that store was assaulted in late June. A clerk was murdered in 2016 and there was in assault on a clerk in 2020.

That store has done little to protect workers from violent crime. But workers compensation laws in Nebraska do little to incentive stores to protect late night convenience store clerks because they don’t cover purely mental trauma injuries. In other words, if a robber points a gun at a clerk, but doesn’t hurt them physically, that clerk can’t collect workers compensation benefits for the mental trauma.

But even if there is a physical injury, an employee is limited to benefits based on their wages. Employees don’t have the option of filing a negligence case where damages, in theory, are unlimited.

Retail workers are in a similar boat to other essential workers who had difficulties claiming workers’ compensation benefits due to COVID-19 exposure. In order for COVID-19 exposure to be covered by workers’ compensation they need to show either the injury arose out of and in the course and scope of employment or is a disease particular to their job. Those can be difficulty standards to meet and it prevented many workers from even seeking benefits.

Of course some states created presumptions of workers’ compensation coverage for COVID-19 for essential workers, but we did not in Nebraska.

So in short, essential workers are limited to workers compensation coverage for obvious on-the-job hazards that could be prevented or mitigated by their employers. But due to the structure of workers’ compensation laws, many of those hazards aren’t covered by workers’ compensation.

Of course other essential workers such as delivery drivers and taxi drivers are defined as contractors as so-called gig economy companies attempt to re-write our social insurance and employee classification laws to enrich their shareholders.

I think the structural weaknesses of workers compensation laws lead attorneys to look for ways to sue employers in tort, bad faith or even under retaliation laws. But these laws can be watered down by courts and civil litigation only pays people for harms after they happen. Stronger workers compensation laws that protected all workers from obvious hazards could make other types of litigation less necessary.

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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Arguments against COVID safety standards in meatpacking sound same in court and in the Unicameral

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Nebraska legislators narrowly advanced legislation, that if enacted, would mandate basic COVID-19 safety measures at meatpacking plants.

State Senator Tony Vargas of Omaha introduced the bill to protect meatpacking workers. According to Vargas, 7382 meatpacking workers contracted COVID-19, 256 were hospitalized and 23 died due to the COVID-19 pandemic.

I support this legislation. Early on in the pandemic, I wrote about why I thought workers’ compensation laws weren’t suited to help workers effected by the pandemic. The bill includes requirements about reporting COVID-19 exposure which would aide in prosecuting workers’ compensation cases related to COVID-19.

But, the bill does not include a presumption of workers compensation coverage for COVID-19 exposure. One would think that relatively mild legislation would face little opposition. But that assumption would be wrong.

Somewhat unsurprisingly the arguments used by opponents of COVID-19 safety measure opponents mirrored arguments made by packinghouses in COVID-related litigation. Some legislators argued that the state should not regulate workplace safety in meatpacking houses because that was the job of the federal government. In short, the state was pre-empted from regulating safety conditions in meatpacking plants.

Tyson Foods made similar arguments about federal preemption in their defense to an Iowa state law case involving a lawsuit against Tyson for having their managers make bets on COVID-19 death tolls in an Iowa plant.

I think the preemption argument is specious because states clearly have the right under the 10th Amendment to make laws about health and safety. That’s the constitutional basis for workers’ compensation laws.

On the flip side, the basis for the federal government to regulate meatpacking stems from the interstate commerce clause. Meatpacking is one of many businesses in Nebraska engaged in interstate commerce. Under the theory advanced by opponents of safeguards for meatpacking workers, the state wouldn’t have the right to regulate those industries either.

Federal and state laws conflict all the time in matters of workplace safety and the effects of workplace injury. Meatpacking plants in Nebraska are largely operated by large multi-national firms with armies of lawyers who comply with all sorts of rules and regulations in different states and countries.  

In my view, the packing plants exploited a gap in workers compensation laws to largely avoid paying COVID-19 benefits under workers’ compensation. The standards proposed by Senator Vargas are reasonable, constitutional and should have passed with little debate last year when they were originally proposed.

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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Your rights when COVID vaccinations go wrong

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Good news ! (For once)

Unless you’ve been hiding under a rock, you know there is a COVID-19 vaccine. But what happens if something goes wrong with the vaccination and or if something goes wrong with the vaccination if you are required to be vaccinated for your job?

Countermeasures Injury Compensation Program (CICP)

Negative reactions to the COVID-19 vaccine can be compensated through the Countermeasures Injury Compensation Program (CICP) The CICP is administered through the Health Resources and Services Administration. You can find out about the claims process here.

The CICP is similar to, but separate from, the National Injury Vaccine Injury Compensation (VICP) fund, which pays individuals on a no-fault basis for adverse reactions to some vaccines.

Workers compensation and COVID-19 vaccinations.

So, would an injury from a work-mandated COVID-19 vaccination be covered by workers’ compensation? I believe so. Workers compensation covers injury arising out of an in the course and scope of employment.  If you get hurt doing something ordered by your employer, you are likely covered by workers’ compensation unless you are substantially deviating from your job duties.

So a worker who has an adverse reaction to a COVID-19 vaccine or another type of vaccine would have two claims – a workers compensation claim and a claim against a vaccine fund. Typically if a third-party is responsible for a work injury, workers compensation can claim some right of repayment called subrogation.

However, I am not sure if workers compensation subrogation would apply to compensation paid out under a no-fault vaccination program. Todd Bennett and I discussed this around the coffee machine on Friday morning. Nebraska’s subrogation statutes seem to envision a situation where an employee files a traditional negligence case for a work injury. My guess is that workers compensation would likely claim a subrogation right against settlements from a vaccine fund, but that an injured worker – or their lawyers — should be able to push back against any repayment claims by a workers’ compensation insurer.

Botched injection injuries

I’ve never had a case involving a vaccine reaction. But I have had workers’ compensation cases involving botched injection that lead to muscle and joint injuries. Again those are workers’ compensation cases. I would expect a fair number of those types of injuries as public health authorities rush to vaccinate millions as quickly as possible. There may also be a negligence or malpractice case against the provider of the vaccinations.

The handling of the pandemic doesn’t engender much confidence in how corporate America and government officials will handle the mass vaccinations required to end the pandemic. People need to know their rights and exercise those rights if and when vaccinations go wrong.

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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Sacrificing essential workers in the name of “bipartisanship”

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Last week daily COVID-19 related deaths reached a daily rate equal to the September 11th terror attacks. Weekly unemployment claims remained higher than during the 2008-2010 recession. But never fear, a group of bi-partisan group of federal legislators came up with a solution:

Protecting corporations from lawsuits related to COVID-19.

The liability protections were part of a “super-skinny” relief package put together by the so-called “Problem Solvers Caucus” and supported by Democratic congressional leaders.

University of Wyoming Law Professor Michael Duff wrote a much better version of the blog post that was rattling around in my head on treadmill on Thursday morning. I’ve written plenty about how workers’ compensation is an inadequate remedy for COVID-19, but that it blocks efforts for workers to seek justice outside of workers’ compensation.

Duff’s points out tht more workers, particularly in the gig economy, are denied even basic employment protects workers compensation. Liability protections would take away the right of contractors or gig workers to sue for catching COVID due to corporate negligence. Duff called the proposal “treacherous” and “not civilizational.” In the final paragraph he more or less states the liability provision creates a constitutional crisis.

I agree with Professor Duff.

The constitutional crisis is that Congress wants to strip rights from essential workers. Sure, the legislation only calls for a liability shield for six months, but how easy would it before Congress to extend the shield once it’s implemented?

Maybe this sounds like a paranoid slippery-slope argument, but one of the raps on outgoing President Trump was that he violated norms with his behavior and conduct which undermined the Constitutional order. I think that that’s true. Norms were supposed to be respected with the election of Joe Biden and the return of “the adults in the room.” A bi-partisan group of self-proclaimed problem solvers defines what it means to be “the adults in the room.” Turns out the “adults in the room” don’t really respect norms either. The norm in this case is the basic ability of a person to have some access to the court system to address harm

The poor behavior of the “adults in the room” is dispiriting to say the least. Advertisers and politicians have extolled the “essential worker” throughout the pandemic. In some states, New Jersey as an example, that talk has turned into helpful action for essential workers. But hearing politicians who vote for COVID-19 liability shields celebrate essential workers rings hollow.

The fact that tort reform is part of a take or leave it deal, where the consequences of leaving it will be millions of people slipping into destitution is disturbing.

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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Higher out of pocket costs in disputed comp. claims other COVID workers comp(lications)

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I had an awful realization summarizing medical bills in preparation for a workers’ compensation trial; injured workers who aren’t exposed to COVID-19 are in for a nasty surprise due to the resurgent pandemic: having to pay deductible in denied or disputes workers’ compensation.

Due to the COVID-19, many hospitals in Nebraska are delaying non-urgent surgeries because of lack of space in hospitals. Often times orthopedic injuries which are the most common workers’ compensation injuries are deemed to be non-urgent.

Of course, if workers’ compensation cases are accepted a worker doesn’t have to worry about medical expenses. However, many workers compensation case are disputed. In disputed case, many workers fortunate enough to still have health insurance pay for surgeries with private health insurance.

But private insurance requires you to burn through a deductible in order to have insurance start paying benefits. Your typical white-collar weekend warrior or Crossfit mom typically waits until the year to have surgeries as they don’t have to pay the deductible because it was spent down through out the year

But because of delays in non-urgent surgeries, more injured workers paying for surgeries in disputed workers compensation cases with private insurance will need to pay deductibles for procedures delayed into 2021.

So what options do workers have in this situation?

The first option is to get a lawyer and file a workers’ compensation lawsuit if you haven’t done so already. This may seem self-serving, but under Nebraska law, if a medical bill is related to a workers’ compensation claim a provider must delay collections efforts until the case resolves. (Of course, if you need a surgery and] your employer or their workers compensation insurer is denying medical care, you should get a lawyer even if you don’t have to pay a deductible)

Other problems with COVID delays

Higher out of pocket medical costs aren’t the only hitch for injured workers due to surgical delays to due to COVID-19. Workers who need to miss work due to a medical condition only have 12 weeks of job protected leave under the Family Medical Leave Act. (FMLA) Delays in surgery due to COVID may prolong treatment and return to work beyond 12 weeks.

Earlier in the pandemic, I thought the silver lining of medical delays could mean more temporary total disability (TTD) for injured workers waiting for medical treatment. I still think that could be true, but I can also see employers being more aggressive in return to work or voluntold community service light duty work to get around paying lost income benefits. Voluntold light duty assignments are full of pitfalls for injured workers

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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