I suspect this challenge may weaken protections for whistleblower employees who report their employers to OSHA for not following OSHA rules on COVID vaccination and testing. Here is the why and how I think state challenges to federal rules on vaccination and testing could undercut whistleblower protections in Nebraska.
But in Nebraska, employers have a right to sue their employers for conduct that violates state or federal law under Neb. Rev. Stat. 48-1114.
In a typical retaliation case an employee has to show that 1) they engaged in a protected activity 2) their employer took some adverse action against them and 3) there is a causal link between the protected activity and the adverse action
At least under current Nebraska law, employees just need to have an honest or good faith belief that their employers conduct violates the law to have their report of unlawful activity to be a protected activity.
The potential problem for Nebraska employees seeking protections for reporting their employers to OSHA for not following the vaccine rule, is that a state law challenge to the rule blurs the lines whether the conduct they are opposing is plausibly unlawful.
Employees don’t have protections for reporting what courts deems as bad acts that aren’t illegal. Furthermore, courts in Nebraska hold that they aren’t going to second guess personnel decisions barring some evidence of discriminatory intent under the employment at-will doctrine. So, not surprisingly, employers typically fight the issue of whether their employee was engaging in a protected activity at all. Courts will sometimes agree with employers on this argument
I believe an employee can still meet a good faith standard by arguing they were opposing conduct that is unlawful under federal law. But a state law challenge to a federal rule on COVID vaccination and testing could narrow an already narrow path to a successful retaliation case for a whistleblower in Nebraska.
So in many respects, the threat of violence, even if vague or taken out of context. in the workplace is taken more seriously than actual violence. It’s easy to square this seeming contradiction when you realize employment laws in this country are written to benefit employers. The concept of employment at-will, created by a legal academics in the mid-to-late 19th century, and implemented by judges is the root cause of the imbalance of labor-management relations in this country.
So what can be done to protect employees from actual workplace violence, aside from outright abolishing employment at-will?
OSHA standard on convenience stores
I think OSHA should implement nationwide safety standards for convenience stores. OSHA has been pondering this idea since the 1990s. I know from my informal discussions with local OSHA staff, that this idea is popular with OSHA staff. A rule would improve safety in convenience stores.
The vast majority of the time, a union contract provides more on-the-job protections than any government regulation or anti-discrimination law. The House recently passed the Protecting the Right to Organize or PRO Act, that it would make it easier to organize unions. This would be a boon for workplace safety for all workers.
The same troll army of freelance writers, literal neo-liberal shills, who whined about AB5 in California are now attacking the PRO Act. I support the PRO Act. My only concern about the PRO Act is that it gets used by Uber, Lyft, Door Dash, et al. to implement half-a— “portable benefits” schemes under the guise so-called “sectoral bargaining.”
But it “violating” work restrictions can be grounds for denying workers compensation benefits in Nebraska in certain circumstances. Primarily, if an injured worker misrepresents their old injury to a new employer.
Misrepresentation as a defense to paying workers compensation benefits in Nebraska
Some of the more creative minds on the management side argue that concealing an old injury from an employer is willful negligence by an employee. Willful negligence is also grounds to deny workers’ compensation benefits. The Tennessee decision more or less rejected that argument and would be good persuasive authority on the issue.
Fired for violating work restrictions
Can an employer fire you “violating” work restrictions? It depends on the circumstances. If you’re on a 10 pound restriction and you get caught doing cross-fit, I would say yes. But a case where you lift 29 pounds with a 25 pound restriction is a closer call. It’s unlawful to fire some in Nebraska, and most other states, for filing a workers’ compensation claim. Firing someone for a petty and unintentional “violation” of work restrictions would seem suspect and could infer that the workers’ compensation claim was the reason they were fired.
Why I put quote marks around “violations” of work restrictions.
But what if an employee is fired for exceeding work restrictions that weren’t disclosed?
Fired for concealing work restrictions?
I think these are close cases. As a plaintiff’s lawyer, I would argue that someone who was fired not disclosing a work injury still has a retaliation claim. After all, but for the employee filing a workers’ compensation case, the employer would not have discovered the concealment and fired the employee. Maybe that seems like an overly technical argument, but does the argument at least shift the burden on to the employer to argue an equitable defense like laches or unclean hands? I don’t know the answer to that question, but if there is other evidence of retaliatory motive then concealing an old work injury may not be a lawful reason to terminate an employee.
Don’t risk getting fired
However, as an employee you don’t want to take the risk. The ADA requires that employers attempt to work with you to accommodate a disability. If you are concerned about returning to work after an injury, don’t conceal old injuries if they could reasonably impact your ability to do your job. Often time there are simple fixes that allow you to complete your job duties. The Job Accommodation Network has suggestions about how to accommodate disabilities. Try to use those resources and/or work with your co-workers to try to accommodate your disability. Unions are also a great resource for accommodating an injury, use them when they are available.
Walking off-the-job in mass or mass call-ins without union approval or without a union period is sometimes known as a “wildcat strike.” But while the LEA was correct in stating a coordinated sick out by teachers is illegal in Nebraska, most private sector employees have the right to walk off the job due to safety conditions under certain circumstances.
Some workers are still fortunate enough to enjoy union representation. If you are one of those workers, join your union and get involved in your union. Unions make the workplace more democratic and allow for employee input, but unions work best when workers get involved. One of my pet peeves is listening to clients or potential clients telling me “the union doesn’t do anything.” Some unions are better than others, but even a weak union gives most employees better benefits and more job protections than they would be entitled to otherwise as an at-will employee.
Public sector labor law reform in Nebraska?
Public sector employees cannot strike in Nebraska. Nebraska law is clear on that issue unlike more ambiguous laws in West Virginia, Oklahoma and Arizona that had teacher strikes in 2018. Nebraska law also holds teachers and other employees can’t engage in work slow downs or sickouts. In fact it is a crime to even advocate or advise public sector employees on workplace strikes and slowdowns and to support strike funds. While Nebraska laws on public sector strikes may be vulnerable to some First Amendment challenges, public sector strikes and work slowdowns remain a very risky proposition for participants.
Nebraska is also one of the few states that hasn’t adopted charter schools which are opposed by teachers’ unions. I’m not sure that the Nebraska State Education Association, the union representing teachers in Nebraska, would want to risk alienating support for public schools with proposals that could seem radical to many Nebraskans, including teachers.
I saw something new in the world of workers’ compensation last month; a “work restriction agreement” between an employee and a doctor. The agreement raised my eyebrows when I first saw it and it raised my eyebrows again when I dug it up to write this post.
The more I thought about this agreement, the more I saw the handiwork of a nurse case manager. Nurse case managers have all sorts of advantages over injured in workers in a workers’ compensation claim. In my mind, this agreement really seemed like running up the proverbial score.
So why did this agreement rub me the wrong way?
Trust and stigma in workers’ compensation
When I saw the agreement, I thought about the agreements that doctors often make patients sign in order to receive opioid pain medication. To some extent those agreements are well-intentioned because they can inform patients about how to take medication properly. But the agreements have been criticized for undermining the doctor-patient relationship and stigmatizing users of prescription drugs as potential addicts. Injured workers are equated with drug addicts.
Like drug addiction, issues about doctor-patient trust and stigma are major issues for injured workers. Many injured workers refuse to claim workers compensation benefits out of fear as being stigmatized as freeloaders looking to “milk the system”. But even if workers overcome that stigma and claim benefits, most workers are surprised to find how little privacy they have regarding their health history once they claim benefits.
The role of the nurse case manager
One of the most visible examples of the relative lack of privacy in workers’ compensation claims is the nurse case manager. A nurse case manager is usually a nurse hired on behalf of the workers compensation insurer, but it can be someone employed directly by your employer. This nurse case manager will suddenly pop up in the examination room when you visit your doctor or a doctor about a work injury.
We tell our clients to tell that nurse case manager to scram (politely of course). That might be less of an option if the nurse case manager works at your company and is more or less in management. An employee may feel pressured to allow a company nurse case manager in an exam room out of fear of losing their job or being disciplined. Nebraska law makes it illegal for employers to retaliate against employees for claiming workers’ compensation. I’ve never seen a case related to an employee telling an in-house nurse case manager to leave an examination room, but it could be an interesting case.
But even if you can get the nurse case manager out of the exam room, you can’t stop a nurse case manager from talking with your doctor privately. So, what is it that the doctor and the nurse case manager talk about? Oftentimes it’s whether an employee can return to work. That’s where these “work restriction agreements” come into play.
How the work restriction agreement works and can work
I think nurse case managers are driving the bus on “work restriction agreements.” Some doctors like nurse case managers. I think part of reason some doctors like nurse case managers is oftentimes a nurse case manager will have access to written job descriptions that help doctors to tailor work restrictions.
The work restriction agreement I saw incorporated a written job description. The agreement contained a provision that the workers work restrictions were just exactly as described by the doctors note. This would limit the employee’s ability to testify to the extent of their own restrictions at trial.
In addition, the agreement contained a provision that the employee would refuse work that exceeded her restrictions. Interestingly enough, the agreement created no requirement that the employer not ask or force the employee to exceed their stated work restrictions. Overall the document created obligations for the employee, but none for the employer. (If this sounds like collusion, it is and you can read more about why this collusion is usually permitted here.)
Given the one-sided and legalistic nature of the “work restriction agreement”, I am not surprised it showed up in cross-examination like questioning from an employer’s lawyer in a workers’ compensation deposition. The nurse case manager was essentially helping to create what amounts to attorney work-product to be used in a workers’ compensation case. (It could also be used in an employment law claim as well.) But while a “work restriction agreement” is a fairly blatant effort to create evidence, nurse case managers have more subtle tactics.
Of course, insurers have more blunt tactics to influence medical evidence – they pay the bill. I remember sending a questionnaire out to a doctor in a case because their dictation wasn’t enough to help prove my client’s case. I was bluntly told by clinic staff that since “workers compensation already paid the bill” that they saw no reason why they needed to fill out additional paperwork. Paying the bills gives insurers a lot of influence and make their nurse case managers seem a lot more persuasive than they would be otherwise.
Many nurse case managers also have long-standing relationships with doctors which leads doctors to trust nurse case managers. It seems nurse case managers aren’t happy with their advantages and are seeking to further their advantage over injured workers through the use of forms like “work restriction agreements” that further stigmatize injured workers.
doesn’t mean impossible. Some COVID-19 exposures could lead to death, serious
injury and or extensive medical expenses. Here is how I think workers should pursue workers’
compensation benefits for COVID-19 exposure
of COVID-19 workers compensation claims are worth bringing
While a mild
case of COVID-19 probably wouldn’t justify bringing a workers’ compensation
claim, COVID-19 symptoms may flare up in the future. So regardless of the severity
of the COVID-19 exposure, it would make sense for a worker who thinks they got
COVID-19 on the job to investigate how they may have gotten the virus.
Most COVID-19 cases will likely be proved by circumstantial evidence. This means that workers should try to rule out non work-related exposure and rule in work-related exposure. This may be challenging because workers who are likely to exposed to COVID-19 on the job are also likely to have friends and family members who have been exposed to COVID-19 who could have exposed them to COVID-19 outside of work.
Workers who have
been exposed to COVID-19, or their friends and family, need to do the leg work
to gather the facts about possible COVID-19 exposure before memories fade and
supporting documentation disappears.
Why you will
probably need an attorney to pursue a COVID-19 workers’ compensation case
I believe insurers and employers will deny most COVID-19 workers’ compensation claims for two reasons. One, the cases are hard to prove. Two, many insurance policies apparently have virus exclusions. A lawyer can help a worker, or the family of a worker, exposed to COVID-19 gather facts to support their case.
I think lawyers
pursuing workers’ compensation claim related to COVID-19 in Nebraska need to
file petitions and serve discovery as soon as possible. COVID-19 claims will likely
require more factual investigation than a typical workers’ compensation case.
from co-workers and fear of retaliation
also make good law. What that means is a co-worker who gets fired for helping a
co-worker get workers’ compensation benefits may create law that formally
extends the protections of workers’ compensation retaliation in Nebraska.
Though mainstream media has not widely reported this news, credible outlets like Payday Report and Law 360 have reported about widespread strikes and employee walkouts over COVID-19 safety related concners. So far, no walk outs have been reported in Nebraska. But supporting a co-worker in a workers’ compensation claim is an act of solidarity like a walk out or strike. The ability for workers to recover workers compensation benefits for COVID-19 exposure may require acts of solidarity.
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.
what do employees need to know to about coronavirus and workers’ compensation?
possible coronavirus exposures on the job
against retaliation for reporting coronavirus exposure and treating for coronavirus
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.
coronavirus exposure would be difficult workers’ compensation claims
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?
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.
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.
I believe texting and emailing while driving is a terrible
idea and a clear safety hazard. But, management and insurers can use rules
about mobile device use while driving to deny workers’ compensation claims.
Management and insurers can use rules about mobile device use while driving to deny workers’ compensation claims. They can argue either that mobile device use by an employee by driving is a deviation from employment duties. That may be difficult to argue if a travelling employee was using a mobile device while driving for work purposes.
In the alternative the employer may affirmatively allege that mobile device used was a safety violation that would disqualify them from receiving workers’ compensation. This is a difficult burden for an employer to meet. OSHA suggests that employers set up a “disciplinary action system” for workers who violated driving safety rules. Having written rules against a practice can make it easier for an employer to defeat a workers’ compensation claim by arguing an employee was willfully negligent.
Generally, workers compensation laws are favorable to workers who are injured while travelling, this known as the travelling employee doctrine or presumption. But in fairness to the insurance industry, this legal doctrine developed before the use of mobile phones.
In fairness to OSHA, their guidance on mobile phone usage was also meant to protect workers from being forced to use mobile devices while driving. Those who work and live in relatively remote areas know the term “windshield time” to describe long car trips. There is intense pressure to use that time productively. There is a strong temptation to text or email while driving even though you know the hazards.
The guidelines may give employees some protections against retaliation if the refuse to text or email while driving. But anti-retaliation laws are only as good as the court cases that interpret them and some courts have recently began to curtail protections afforded by those laws.
I speak from first-hand experience. I do a lot of
long-distance driving for work. If areas
like rural Nebraska were better served by air, rail and bus service, I wouldn’t
need to drive so much. The same goes for many workers in states like Nebraska.
But thanks to transportation deregulation those of us who travel to and within
rural areas are stuck in our cars during business hours.
Texting and driving creates risks for other motorists in
addition to the drivers who text and drive. But the law already punishes
drivers who cause accidents through use of their mobile devices. Drivers who
text and drive can be punished criminally and be held accountable in civil
cases. Accountability for employers who create dangerous working conditions is mostly
limited to state workers’ compensation laws.
I believe the risk of distracted driving is apparent to any
adult. Why does OSHA need to issue guidance? I suspect it has something to do with my point
about employers using rules against cellphone usage while driving to deny
workers’ compensation claims.
But while OSHA is issuing guidelines about the obvious risk of texting and driving, the United States Department of Agriculture is overlooking the obvious risk of overuse injuries to packinghouse workers. The USDA in the Trump and Obama administrations have allowed meat processors to speed up lines to the detriment of workers. I hope if there is a new presidential administration next year, that administration will use its rule-making power to make workplaces safer and not give employers ways to dodge their responsibilities under state workers’ compensation laws.