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.