Tag Archives: retail workers

What workers should know about coronavirus and workers’ compensation

Posted on by

According to NBC News, at least 20 percent of healthcare workers in Italy have been exposed to coronavirus. Health care workers in Nebraska may be at a similar level of risk. Workers in essential retailing, warehousing and delivery are probably also at heightened risk of catching coronavirus.

So, what do employees need to know to about coronavirus and workers’ compensation?

Reporting possible coronavirus exposures on the job

Coronavirus cases could be difficult workers’ compensation cases for reasons I will explain below. But these difficult cases will be even more difficult in Nebraska if workers fail to notify employers in a timely fashion if they believe they were exposed to the coronavirus. Nebraska courts recently made it easier for employers to dismiss workers’ compensation claims if employees delay notifying employers about potential work injuries. I believe these notice requirements could be even stricter for healthcare workers.

Protections against retaliation for reporting coronavirus exposure and treating for coronavirus

Employees may delay exposure to coronavirus is fear of retaliation. Fears about retaliation will likely be heightened due to fear of job loss in the teeth of mass layoffs and skyrocketing unemployment.

But employees who report possible coronavirus exposure or coronavirus related safety concerns on the job are protected by a variety of anti-retaliation laws that protect workers who claim workers’ compensation and report safety concerns. I’ve written before about the relative weakness of these laws. I believe workers’ will be better served if they can report safety concerns as a group rather than individuals.

A request for time off due to coronavirus or suspected coronavirus may also be covered under the Family Medical Leave Act and the emergency amendments to the Family Medical Leave Act enacted to deal with coronavirus pandemic. These laws also have anti-retaliation provisions.

Why coronavirus exposure would be difficult workers’ compensation claims

The reason why Coronavirus infections may not be covered goes to the fundamentals of proving the basics of a workers’ compensation case: did the infection arise out of and in the course and scope of employment?

In the course and scope of employment

Course and scope of employment goes to having the injury occur within the time and place of employment. Usually in the course and scope of employment is not a disputed issue. But in a case involving a corona virus infection, it may be difficult to prove whether an individual was infected on the job or not. This could be a time and resource consuming investigation for an employee. Public health officials may do some of this legwork, but that information may not be easily accessible due to confidentiality concerns.

Workers infected during business travel are presumed to be acting in the course and scope of employment under the “commercial traveler rule.” But merely catching coronavirus in the course and scope of employment isn’t enough just to have workers’ compensation cover coronavirus related medical expenses and lost wages.

Arising out of

An employee also needs to show that the infection was connected to some risk involved with employment. In other words, employees would have to prove some link between their work duties and their infection. In some cases this could be challenging and would also involve time and expense and in investigation.

Employees may be able to argue in some circumstances that their work increased the chances of them contracting coronavirus. Health care, delivery, warehousing and essential retail employees could have an easier time proving exposure. Unfortunately, in Nebraska there is no presumption of compensability (workers’ compensation coverage) if an injury took place on the job.

Other hurdles of potential Coronavirus workers’ compensation claimants

Coronavirus cases would likely involve more investigation than a typical workers’ compensation case. But many lawyers may not want to take these cases out of economic concerns. In Nebraska, a lawyer can’t be awarded a fee for representing a claimant in a disputed medical bills case. Attorneys can take fees on disability, but temporary disability could be short in a Coronavirus case. In Nebraska, unless a disability lasts more than six weeks and an employer can avoid paying the first week of disability.

Long-term solutions

Last week the president of WILG, a group of lawyers who represent injured workers, called on the insurance industry to make it easier for workers exposed to coronavirus on the job to claim benefits. I think this is a good idea.  The difficulties in getting workers’ compensation for coronavirus indicate the need for stronger health insurance and paid leave benefits to cover employees who may not be able to rely on workers’ compensation.

Stay tuned to this blog about more information about coronavirus and his its impact on workers’ compensation and workplace law. You can also check out my podcast for more commentary.

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.

This entry was posted in Uncategorized and tagged , , , , , , , , .

Does the decline of 24-hour retail mean a safer workplace?

Posted on by
The Lincoln Williamsburg Hy-Vee, just north of our Lincoln office, joined other Hy-Vee stores in ending 24-hour operations

Hy-Vee Stores ended 24-hour operations in most of their stores throughout the Midwest . Did Hy-Vee’s move help workplace safety for their workers?

Maybe.

24-hour retail and workplace violence

Retail workers are increasingly subjected to violence on the job. Violence at stores increases during overnight hours and in stores where alcohol is sold. Some police departments believe 24-hour retail establishments are public safety risks. So by closing at midnight, Hy-Vee may be lowering the risk of injury from violence for their overnight employees.

However Hy-Vee failed to mention worker safety as a reason for ending 24 hour operations. (The reasons sound like a lot of corporate speak for reducing staff.) In my view, Hy-Vee deserves criticism for some workplace safety practices. I noticed Hy-Vee has implemented a light duty program where injured employees literally sit and/or stand and do nothing. In my experience, these programs are borderline abusive and usually force employees to return to work too soon.

Online shopping and the gig economy

Customer convenience drove the expansion of 24-hour retailing. But many shoppers skip the store all together for the convenience of online shopping and delivery.

Online retail has increased warehousing and delivery jobs that have safety risks of their own. Companies looking to save money contract out delivery to gig economy companies like Shipt and Door Dash Shipt and Door Dash classify their workers as contractors. These contractors lack employment protections like workers’ compensation.  California recently enacted Assembly Bill 5 (AB5) to extend employment protections to gig economy workers. California codified the employee-friendly ABC test in AB5. New Jersey and New York are looking at following California’s lead by classifying gig economy workers as employees rather than independent contractors.

Gig economy workers in Nebraska

Nebraska lawmakers have remained silent on whether gig economy workers should be defined as employees or independent contractors. Our state’s workers’ compensation law uses a more employer-friendly “economic reality” test to decide whether a worker is an employee or contractor.

But even using the economic reality test, the Nebraska Supreme Court defined taxi drivers as employees rather than contractors for the purposes of workers compensation. Under that case law, I believe you can argue credibly that most gig economy employees should be deemed employees under the Nebraska Workers Compensation Act.

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.

This entry was posted in Uncategorized and tagged , , , , .

Retail jobs surpass manufacturing jobs in injury rate

Posted on by

What’s a more dangerous job, working in retail or working in a factory?

Most would say manufacturing, but according to the Bureau of Labor Statistics, retail jobs had a higher incidence of lost time work injuries than manufacturing in 2018.

If you read this blog on a regular basis, you know about the danger of retailing jobs. The workers’ compensation blogosphere runs “the dangers of holiday jobs” posts over the holiday season on a yearly basis to talk about risks of holiday employment in retail.

While automation, think self-checkouts, has eliminated some retail jobs, the remaining retail jobs usually require at least a 50-pound lifting restriction. Online shopping and competition from Amazon, means that more retail employees perform heavier and more dangerous warehousing and delivery tasks. The increased injury rate in retail work also means that more injured employees may be placed in light or alternate duty attendant jobs like the famous Walmart greeter job.

Workers’ compensation lawyer bloggers tend to write about jobs with high injury rates. But the story of retail employment isn’t just a question of retail work becoming more dangerous, it could also be caused by manufacturing jobs becoming less dangerous.

A recent article in the Wall Street Journal predicted that within a few years, the majority of manufacturing employees will have a college degree. The changing demographic of manufacturing employees is explained by increasing investment in manufacturing technology that will turn many manufacturing workers into machine operators who require specialized skills.

In theory — and practice – this investment in technology should make manufacturing jobs safer. But manufacturing jobs will still be more hazardous for the foreseeable future. Some investment in manufacturing technology involves cobbling together 2010s (and soon 2020s) software on top of machines built and designed in the 1960s. The dangers of this approach were exposed by two crashes involving the Boeing 737 Max. The 737 Max is an example of the hazards that workers’ can be faced with when companies mix 20th and 21st century technology.

New manufacturing technology may also fail to take human factors into a consideration. An expensive new piece of machinery may increase productivity, but it may still require heavy lifting from a worker to process inputs.  The new manufacturing economy probably won’t be as safe as portrayed in the pages of the Wall Street Journal and other publications targeted at wealthy professionals. Meanwhile, retail employment may be more dangerous than commonly understood.

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.

This entry was posted in Uncategorized and tagged , , , .

Why are mental-mental benefits generally limited to first responders?

Posted on by

Convenience store clerks are often exposed to violence. But in order for them to be compensated for work -related mental trauma, they generally need to have a physical injury.

The question of why coverage of so-called “mental-mental” injuries, or work injuries that do not involve a physical injury, is generally limited to first responders is a question that is increasingly vexing attorneys for injured workers and commentators on workers compensation — and workers.

The answer boils down to politics.

From a logical and moral point of view there is no reason why a convenience store clerk and a police officer shouldn’t be able to collect workers’ compensation for purely mental injuries from exposure to violent crime. 

Legally that moral and logical sentiment is often expressed as an argument that such distinctions violate equal protection under state and federal constitutions. Advocates for injured workers have had some success in striking down so-called workers compensation reforms on equal protection grounds.

But while equal protection arguments can be useful in restoring rights to workers compensation, they are less helpful in creating new rights such as compensation for mental injuries. When addressing whether a law is constitutional, appellate courts usually decide first on what level of scrutiny to apply. The less stringent the scrutiny, the more likely the court will find the law to be constitutional.

Health and safety laws like workers compensation are generally afforded rational basis scrutiny by appellate courts. That means courts will generally uphold the constitutionality of those laws. That deferential level of scrutiny emerged out of the New Deal era as a way to uphold the constitutionality of laws relating to social welfare. But in the modern era rational basis scrutiny is often used to argue that the protections of laws like workers compensation shouldn’t be expanded by courts in a way not intended by a legislature.

In Nebraska it was the legislature that created compensation for mental-mental injuries for first responders and expanded that protection to prison guards and Department of Health and Human Services employees in contact with high risk indviduals. So ultimately providing protection for purely mental injuries to all workers — not just first responders — will be a political issue.

 

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.

This entry was posted in Nebraska, PTSD, Workers Compensation and tagged , , , , , , .