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July 2, 2020 by Michael C. Duff

Will COVID-19 'Shock' Workplace Injury Law Like the Railroads of the Early 20th Century?

Workers' compensation was created as a means to an end and not an end in itself. It addressed the outrageous frequency of workplace injury and death caused by railroads in the late 19th/early 20th century. The unholy trinity of employers' affirmative tort defenses – assumption of the risk, contributory negligence, and the fellow servant rule – meant that workers or their survivors were not being compensated adequately or, in many cases, not at all.

For this reason, expert American investigators were dispatched to Europe between 1909 and 1911 to study the existing workers' compensation systems there. Those experts' work set American workers' compensation baselines. The oddity is that while Europeans moved on to universal benefit systems, we continue to use their 19th century work-injury system. (I write about these developments here). Additionally, the United States briefly flirted with the prospect of broadly establishing "liability statutes" in which employees' burdens for bringing railroad and maritime civil actions were lightened and affirmative defenses limited. (These experiments have more narrowly lived on in the form of FELA and the Jones Act).

The railroad experience, and dangerous industrial work generally, made everyone realize, virtually …

June 15, 2020 by Michael C. Duff
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While I suspect that workers' compensation claims, even without the aid of workers' compensation causation presumptions, may fare better than some actuaries suspected (preliminary scuttlebutt of about a 40 percent success rate is higher than I expected), there is no reasonable doubt that large numbers of workers will ultimately go uncovered under workers' compensation during the COVID-19 pandemic.

As I have argued throughout my postings on this blog, workers' compensation exclusions and denials will pose many challenging legal questions. In the meantime, however, many disabled workers will simply find themselves uncompensated (some may receive assistance under the Federal Pandemic Unemployment Compensation Program; eligibility is tricky, however, because under state unemployment compensation law an individual must generally be available for work – and not disabled – in order to qualify, a topic beyond the scope of this post).

In short, there are gaps and fissures appearing under state workers' compensation …

May 21, 2020 by Michael C. Duff
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A recent, interesting lawsuit filed against McDonald's, in Cook County, Illinois, suffers from few of the deficiencies that I have identified in prior postings about public nuisance cases related to COVID-19 (see here and here). The named employee-plaintiffs allege "negligence" in what might look at first blush like a drop-dead workers' compensation case. This time, however, there is a wrinkle: The negligence action is pursued against both franchisor-McDonalds (McDonald's USA) and certain of McDonald's franchise restaurants (McDonald's Restaurant of Illinois, Inc., Lexi Management LLC, and DAK4, LLC). One may be the employer (subject to workers' compensation liability), and the others may not (and therefore be liable in tort). Because you cannot know in advance how the question will come out, you allege negligence with respect to each defendant. This is perfectly sensible.

It will be politically …

May 14, 2020 by Michael C. Duff
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Listening in on Tuesday's Senate Hearing on Corporate Liability During the Coronavirus Pandemic – you can find the video here and do a text search for "workers' compensation" – I was especially pleased to hear workers' compensation immunity discussed at 1:14:20 to about 1:14:50. Sen. Sheldon Whitehouse of Rhode Island specifically asked whether blanket corporate immunity would constitute subsidization of workers' compensation insurers. Witness Professor David Vladeck of Georgetown University Law Center responded that it very well could if workers' compensation were not carved out of the bill. I did not hear anyone contend during the hearing that workers' compensation could not be part of an immunity blanket, which is food for thought.

Coincidentally, I had been reading in The Atlantic as the Senate hearing was commencing an exceptionally good and sobering account of …

May 6, 2020 by Michael C. Duff
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In what for me is an ominous development, the Smithfield Foods public nuisance case, about which I blogged earlier, has been summarily denied by a Missouri federal district court and the case has been dismissed. The decision took all of twelve days.

In a nutshell, the court accepted the primary jurisdiction arguments that I have previously discussed but will not repeat here. Sometimes cases are illustrative of clear legal principles. This, for me, is not one of those cases. Sometimes cases set "mood points." And I fear that is the situation here. I have great concern about the prospect for an unreflective, anti-liability fervor enveloping the Great Reopening, though this decision did not directly reach questions of liability that could impact state workers' compensation or tort law. Narrowly read, the heart of the case is …

May 5, 2020 by Michael C. Duff
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Cross-posted by permission from Workers' Compensation Law Prof Blog.


As Senate Republicans and corporations continue to lobby for the broadest possible “liability shields” in connection with the Great Reopening, a novel lawsuit framed in terms of public nuisance theory is being litigated in a Missouri federal court. From the Nolo Plain-English Legal Dictionary, a public nuisance is defined as “[a]n activity or thing that affects the health, safety, or morals of a community. It is distinguished from a private nuisance, which harms only a neighbor or a few individuals. For example, a factory that spews out clouds of noxious fumes is a public nuisance, but playing drums at three in the morning is a private nuisance bothering only the immediate neighbors.”

So, under the theory of the case I'm about to discuss, when a meat-packing plant does not conform to, for example, CDC social-distancing guidelines, it …

April 21, 2020 by Michael C. Duff
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Editor's Note: With COVID-19 cases contracted at work on the rise, labor and employment attorneys, businesses, advocates, and workers are all wondering if their state’s workers’ compensation law will apply, and alternatively, if an ill worker could file a lawsuit against their employer. The answers to these questions are not simple, as workers’ compensation laws vary by state, and when it comes to occupational diseases, the applicability of workers’ comp is often even more complicated.

In a recent post on Workers’ Compensation Law Prof Blog, CPR Member Scholar Michael Duff discusses the so-called workers’ compensation “grand bargain,” under which workers receive no-fault benefits for work-related injuries and illnesses in exchange for giving up their right to file a lawsuit against their employer. In his post, Duff explores the circumstances in which a worker who has contracted COVID-19 at work may still have the right to file …

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More on CPR's Work & Scholars.
July 2, 2020

Will COVID-19 'Shock' Workplace Injury Law Like the Railroads of the Early 20th Century?

June 15, 2020

Pandemic Heroes Compensation Act of 2020: Preliminary Observations on the Proposed Bill

May 21, 2020

Another Public Nuisance COVID Suit: Why is the McDonald's Case Different?

May 14, 2020

The Stimulus 'Liability' Debate: Don't Forget Texas Elective Workers' Compensation

May 6, 2020

Novel Smithfield Foods Public Nuisance Suit Dismissed Without Prejudice

May 5, 2020

The Public Nuisance Litigation in a Smithfield Foods Meatpacking Case: Workers' Compensation Implications?

April 21, 2020

COVID-19: Legal Issues When Workers’ Compensation Doesn’t Apply