Nebraska bill aims to expand vaccine exemptions

Posted on January 9, 2022 by Jon Rehm

Last week, the United State Supreme Court heard arguments over federal COVID-19 vaccine mandates in the workplace. Meanwhile, 11 state legislators in Nebraska introduced legislation that would expand the rights of employees in Nebraska to opt out of employer-mandated vaccinations.

LB 906 would allow employees with a “strong moral, ethical or philosophical belief or conviction” to opt out of required vaccines in the workplace in employers with more than 20 employees.

The bill, if passed into law, would require the Nebraska Department of Health and Services to create an exemption form.

Employees can already claim religious and disability/medical exemptions from vaccine requirements under state and federal law. The ““strong moral, ethical or philosophical belief or conviction” would appear to broaden the exemption and likely simplify the process of a vaccine exemption.

But the bill allows employers to require exempt to test for infection at their employers’ expense or wear personal protective gear provided by their employer at their employer’s expense.

Traditionally protective gear is an expense born by employers. But the new federal mandates, put forward by a Democratic administration, requires employees who refuse vaccines to pick up the cost of their tests and protective gear. This practice has been criticized by employee-advocates. Ironically, the 11 co-sponsors of LB 906 are more-or-less uniformly right-wing. Yet they support legislation that doesn’t shift the cost of testing and protective gear onto employees.

Masks as PPE: OSHA vs. CDC

The one potential complication to this bill is the wording “personal protective equipment” or PPE. Lay people could believe that cloth masks and surgical masks would count as “personal protective equipment”. But the Occupational Health and Safety Administration (OSHA) doesn’t count some masks as PPE while the Centers for Disease Control (CDC) defines masks as PPE.

Perhaps I’m overthinking the issue, but I could see an employer mandating masks and some employee arguing masks don’t count as PPE so they don’t have to wear a mask at work. But without anti-retaliation language in the bill or a penalty against employers who violate the act, I don’t see employees having legal recourse for refusing to wear a mask if they file for a vaccine exemption under LB 906.

New year, new you, but same old work comp insurance companies when it comes to exercise for injured workers

Posted on January 3, 2022 by Jon Rehm

Many people start or renew exercise programs at the beginning of the year. But, a return to the gym means workers compensation insurance blogs will be dusting off posts about supposedly disabled injured workers getting caught performing feats of strength at a gym or health club.

Of course, it’s easier for the insurance industry to spy on injured workers through social media. Social media is a fact of life and I’ve explained why I am okay with my client’s using social media. Some lawyers are less accepting of client social media use. When you read about injured workers losing workers’ compensation benefits or even being criminally charged for things they posted on social media, I can see why other lawyers don’t want their clients using social media.

So if injured workers feel the need to start an exercise program over the new year, it’s best to keep it off of social media. It’s also wise to consult with a doctor or physical therapist about exercise.

But there are many good reasons why injured workers should exercise if they are able. In my experience it isn’t just good for physical health, often physical activity, if done the right way, can benefit the workers’ compensation case of an injured worker.

Here is why I think that is so:

If you’re doing physical therapy or rehabilitation, you’re already exercising – Many injured workers go through physical therapy. That physical therapy often requires injured workers to do strengthening exercises with a therapist and to do exercises at home. If you are complying with your physical therapist’s orders, that facts tends to weigh in your favor with a judge deciding your case. But the opposite can also be true.

If you’re not completing your physical therapy, you are probably hurting your case – A lot of lawyering consists of checking proverbial boxes. One box that insurance defense lawyers like to check is an injured worker who doesn’t complete their physical therapy. From my perspective, I’m willing to listen to my client about why they didn’t complete their prescribed physical therapy. But absent a good explanation or other favorable evidence, a judge may look at the failure to complete physical therapy as evidence an injured worker is exaggerating their injury.

Improvements in your health tend to help your case – Workers’ compensation cases depend largely on how judges read medical records. What the judges read depends on what doctors write in those records. A few keywords or comments from a doctor can sink a case. But an injured worker who tries to be physically active within the confines of their physical restrictions tends to get the benefit of the doubt from their doctor. Physically active injured workers also tend to display positive results on their medical records on measures like pulse, blood pressure and weight. Showing improvements in those vital signs is something to which doctors will pay attention to and often note in their records. I believe judges tend to those kinds of injured workers the benefit of the doubt in contested cases.

Physical activity can help sustain an award of future medical care – One benefit available to injured workers in Nebraska is future medical care. In my experience many injured workers get done with their medical treatment and get released without an order for medical care. Doctors are reluctant to order medication and some workers don’t find medication helpful. But certain activities, like water exercises can help manage pain. If that type of exercise is ordered by a doctor as a result of an injury, an injured worker could get something like a gym or health club membership ordered by a court. But again, a worker needs to show a record of complying orders from doctors and physical therapists if they want benefits like health clubs and exercise equipment ordered through workers’ compensation

Apple whistleblower raises issues over hazardous office spaces that could be disturbingly common

Posted on December 27, 2021 by Jon Rehm

While Amazon gets rightfully roasted for its record on workplace conditions for drivers and warehouse workers, other Big Tech companies generally avoid safety complaints about their workplaces. (At least in the United States)

That was until a recent investigation announced by the Department of Labor based in part on an Apple software engineer making a compliant to the company about chemical exposure in the workplace. The companies’ Sunnyvale, California office is located on a Superfund site and there are toxic materials beneath the building.

Further the whistleblower complained of having a company board member who was previously chief executive of Northrup Grumman. Northrup Grumman, a defense contractor, is responsible for storing the waste material beneath Apple’s office in Sunnyvale, California.

Putting aside the close (and disturbing) relationship between a major defense contractor and a Big Tech company, this investigation is interesting for a lot of reasons.

Interviewed in the Financial Times, Professor Michael Duff, an expert oft-cited on this blog, stated the investigation was unusual as it was based on three statutes and that government must feel strongly about the strength of the case. Other experts believed this case by the Department of Labor follows up on promises by the Biden administration to hold companies to account for misconduct.

A whistleblower with a similar complaint in Lincoln or elsewhere in Nebraska could file a general whistleblower complaint under state law. In addition, they could file a federal charge with the United States Department of Labor like was done by the Apple whistleblower.

I wrote recently about how courts were writing in a “managers rule” into retaliation law that prevented retaliation complaints by employee responsible for legal compliance. The managers rule could deter white collar whistleblowers from making complaints about environmentally hazardous workplaces.

Hazardous developments here in Lincoln?

One of my interests in the complaint is more mundane. The West Haymarket in Lincoln, Nebraska hosts a cluster of tech companies including Hudl. The West Haymarket required expensive remediation of toxic chemicals left over from prior industrial use of the land. I wonder if there would be similar safety concerns in the West Haymarket as with the Apple office in Sunnyvale, California.

The West Haymarket and Railyard area was an effort by city leaders to try to attract and retain young professionals in Lincoln. Lincoln isn’t alone among cities of its size in wanting to create concentrations of tech companies. But to some extent, Lincoln’s “Silicon Prairie” is built on what was toxic soil. I wonder if other cities like Lincoln have build their “Silicon Prairies” on former industrial sites with potential environmental hazards.

Remote work as the cure for toxic or sick buildings?

Obviously the hazards faced by technology workers in office building are different than the hazards faced by meatpacking workers. But eventhough the hazards faced by office workers are less obvious and less acute, it doesn’t mean those hazards aren’t real. One way to reduce the risk caused by buildings built on environmentally hazardous sites is to allow remote work.

Remote work expanded during the COVID-19 pandemic. But remote work pressures commercial landlords and developers who make a hefty profit renting office space and commercial space to the businesses that cater to office workers. There is some indication that commercial landlords are pushing for fewer restrictions related to COVID-19 and trying to return to the pre-COVID “normal”. That pre-COVID normal was profitable for commercial landlords and developers.

But even before COVID-19 there were hazards to white collar work that were not readily admitted by employers. Fortunately white collar workers who work in a physically toxic workplace have legal protections if they bring up those concerns in addition to being able to claim workers’ compensation.

Maximum benefit rate for workers comp. benefits in Nebraska increases unprecedented 7.5 percent for 2022

Posted on December 20, 2021 by Jon Rehm

Wages in Nebraska increased by 7.5 percent in 2021 according to the Nebraska Department of Labor. This is the largest percent increase since at least 1996. How will this impact workers compensation in Nebraska?

Increase in maximum benefit amount

The maximum benefit rate for workers compensation benefits in Nebraska increased from $914 to $983. Since 1996 the workers compensation maximum benefit rate has been pegged to the increase in the state average weekly wage.

Typically statewide average wages increase by 3-4 percent per year. The increase in 2021 is unprecedented and is consistent with labor shortages related to the so-called “Great Resignation” and the COVID-19 pandemic.

Under the new maximum benefit rate, workers earning more than $76, 674 per year without overtime will be under compensated for their work injury.

No increase in minimum benefit

The minimum benefit under for injured workers in Nebraska remained $49. That amount doesn’t increase along with the state average weekly wage. If it had, the minimum rate would be $117.76

Part-time workers should note that permanent disability benefits and eligibility for retraining are based on a 40-hour work week.

Wage inflation and loss of earning power

Earlier this year, I wrote about a Mississippi case, Chambers v. Howard Industries, that allowed courts to take inflation into account when calculating loss of earning power. Mississippi law includes a presumption of no loss of earning if an employee is back to work at the same wage. The court in Chambers allowed plaintiffs to use wage inflation to rebut that presumption.

In my experience wage inflation comes into play with overuse injuries involving multiple body parts that take years to treat. Some back surgeries can have long recovery times. Even with wage inflation of 10 percent, I’ve been able to get counselors to increase loss of earning power evaluations. I would expect greater increases if I could use a 15-20 percent increase over a multi-year period.

Some defense lawyers strongly objected to the use of wage inflation in loss of earning power evaluations. After all benefits are capped by earnings at and before the time of injury.

But using wage inflation doesn’t increase the benefit rate, it just increases the percent of the potential benefit for the worker. I would argue the proposition that loss of earning power evaluations should accurately reflect earning power weigh in favor of using wage inflation.

Amazon warehouse tornado tragedy highlights importance of neutral risk in workers’ compensation

Posted on December 13, 2021 by Jon Rehm

At least six workers died in an Amazon warehouse in southern Illinois on Friday night because of a December tornado. In a blog post over the weekend, Professor Micheal Duff pointed out that in some states, workers killed by weather events like tornados may not be covered by workers’ compensation.

In other words, even if you injured or killed at work, you or your family may not be covered by workers’ compensation. In order to collect workers’ compensation benefits an employee needs to be hurt by some risk legally related to employment. Workers’ compensation laws are state laws and each state has different laws about what is and isn’t covered by workers’ compensation

Fortunately, in Nebraska, workers killed or in injured in a tornado would be covered by workers’ compensation. In the case of Nippert v. Shinn Farm Construction, the Nebraska Supreme Court held that injuries due to neutral risks like tornados, that everyone is exposed to, would be covered by workers’ compensation. Even though the decision was controversial at the time, Nebraska courts seem to accept the positional risk doctrine in some circumstances.

The exclusive remedy doctrine and third-party claims for contractors

Workers’ compensation benefits are limited because employees give up their right to sue their employers for negligence in exchange for not having to prove fault. Some are faulting Amazon for not doing more to protect their workers from the tornado. However those employees and their families will likely not be able to bring negligence claims.

But Amazon typically contracts with other companies to deliver packages out of their warehouses. In theory, any Amazon contractor injured or killed by the tornado could bring a workers claim against their employer and could bring a third-party negligence claim against Amazon.

Neutral risk and COVID-19 workers’ compensation claims

Part of the difficulty of covering COVID-19 exposure under workers’ compensation laws relates to showing an employee was exposed to COVID-19 at work and that they were engaged in some activity benefiting their employer when they were exposed to COVID-19. If a plaintiff can successfully argue that COVID-19 is a neutral risk like severe weather, employees would have an easier time covering COVID-19 exposure under workers’ compensation.

The neutral risk doctrine, natural disasters and climate change

Professor Duff hypothesizes that because of climate change we will see more pandemics and more extreme weather events. I agree with his hypothesis. I also agree with him that risks like extreme weather and infectious diseases do not fit easily within the framework of workers’ compensation. Duff is working on a paper about an “expanded conception” of causation in workers’ compensation. I look forward to reading the paper when it is completed next year.

Why injured workers are joining the “Great Resignation” and why they should be able to keep their workers comp. benefits

Posted on December 6, 2021 by Jon Rehm

One consequence of the COVID-19 pandemic is an increase of workers either retiring or quiting their jobs in the so-called “Great Resignation”. Observers of the workers’ compensation industry predict that this could lead to more work injuries.

I believe this is a reasonable prediction.

Studies show that new workers are three times more likely to be injured than experienced workers. Those same studies also show that only 1 in 5 new workers get proper safety training. As workers move to new jobs post-pandemic, I think it is reasonable to assume an uptick in workplace injuries.

Work injuries often create serious problems for employees and those problems can be worse for new employees. A new employee doesn’t have job protected leave under the Family Medical Leave Act. There may be challenges in calculating benefit rates because of a lack of work history. In a denied or disputed claim, a new employee may not be able to fall back on other employee benefits like disability or private health insurance because they aren’t eligible for those benefits yet.

None of these concerns are new, but the post-pandemic “Great Resignation” could bring some new attention to these issues. Similarly, I think the “Great Resignation” highlights ongoing issues about the rights of injured workers to switch jobs and how it could effect their workers compensation benefits.

Why injured workers want to switch jobs

Clients or prospective clients often ask ,“If I quit my job, can I still get workers’ compensation benefits?” In short, the answer is “Yes, but….”. However before I answer that question, I’m interested in asking why an injured worker would ask that question.

I was often asked that question before the pandemic. In my experience, a lot of employers micro-manage medical care and return injured employees back to identical or similar jobs that they were doing when they got hurt. Particularly if the cause of the injury was overuse, these employees tend to either suffer ongoing pain, get hurt worse or suffer new injuries. So it would make sense that an injured employee would be looking to switch jobs.

The pandemic compounds employee dissatisfaction. Not only are many injured workers more or less working hurt, they are also being put at-risk or being exposed to COVID-19 at work. To add insult to injury and disease, employers can plausibly deny employees workers’ compensation benefits for COVID-19 exposure.

So in short, mangling workers and exposing them to a deadly virus at work doesn’t engender a lot of employee loyalty. It’s not surprising that injured workers would join the “Great Resignation.”

But workers still should be able to preserve workers’ compensation benefits if they switch employers.

The “portability” of workers’ compensation benefits i.e. why you keep comp benefits if you change employers

Workers compensation benefits are the original “portable benefits”. Unlike say, health insurance, workers compensation benefits follow employees. Many employees don’t understand this and think they can lose workers compensation benefits like they would lose health insurance if they quit their job.

Workers compensation benefits break down roughly into medical benefits and disability benefits. Both kinds of benefits follow the employee. Disability benefits break down into temporary and permanent disability benefits. Sometimes employers will deny temporary disability benefits if an employee is fired or quits their job on the theory that the employer could have accommodated an injured worker but for their termination or quit.

Courts determine whether temporary benefits are awarded to an injured worker on a case-by-case basis. Employees have been awarded temporary disability benefits while incarcerated. In Zweiner v. Becton-Dickinson East, the Nebraska Supreme court ruled that employee who moved to a new job then was unable to work because of an injury could receive temporary total disability benefits.

In Zweiner, the court found the employment at-will doctrine dictated that employees had a right to switch employers without fear of losing workers’ compensation benefits. I don’t like the employment at-will doctrine because I think it gives employers too much power to fire employees. But a fair-minded interpretation of the doctrine at least allows employees some ability to switch jobs in response to bad working conditions.

Employers will typically argue that a fire or a quit can rule out or reduce permanent disability benefits and vocational retraining benefits. Like disputed temporary disability benefits, awards of permanent and vocational rehabilitation benefits are determined on a case-by-case basis by courts in cases of an employee termination or quit.

Some types of permanent disability benefits are so-called “scheduled member benefits” which don’t require courts to determine how an injury has impacted an employee’s ability to work. While these benefits may be more limited and somewhat dependent on the whim of a doctor, they are paid regardless of employment status.

Does the “managers rule” greenlight retaliation against whistleblowers?

Posted on November 28, 2021 by Jon Rehm

Whistleblowers are supposed to be able to report illegal activity by their employers free from fears of retaliation. But what if complying with laws is part of your job as a manager or human resources professional? In that case the managers rule may apply and your protections as a whistleblower may be severely curtailed or non-existent.

What is the managers rule?

The managers rule is a creation of federal judges. It holds that employees whose job it is to comply with laws, typically managers and those employed in human resources, can’t be whistleblowers. The reasoning behind this rule is that allowing managers to be protected for reporting information that is part of their job would create too much litigation and make it harder to fire these employees.

Does the managers rule apply in Nebraska?

I am not sure, but I wouldn’t bet against the proposition. The 8^th Circuit Court of Appeals, which Nebraska is part of, has applied the managers rule in federal whistleblower cases and in other state whistleblower laws decided under diversity jurisdiction. The 8^th Circuit Court of Appeals recently remanded a whistleblower case under the Nebraska Fair Employment Practices Act to state court to determine whether the managers rule applies under Nebraska law.

However, Nebraska state courts tend to follow the 8^th Circuit in interpreting fair employment laws, so it is very possible the Nebraska Court of Appeals or Nebraska Supreme Court would adopt the managers rule.

How does a whistleblower get around the managers rule?

I think there are two ways. One way is to show by an employee’s actual job duties that they aren’t covered by the rule. A California federal court did this recently in Kailikoke v. Palomar Community College. The Kailikoke court noted the manager rule wasn’t supported by the text of any statute and would exclude many workers from anti-retaliation laws.

Secondly, even if you concede the managers rule applies an employee who steps outside of their typical job duties to report employer misconduct is still protected by whistleblower laws. In Kelley v. Iowa State University, the Southern District of Iowa, found that a Title IX compliance officer had stepped outside of her role in refusing to implement policies ordered by the University. The court also found that she stepped outside of her role because the school undermined her position.

Employment at-will and the managers rule

The Kailikoke court is right holding that the managers rule isn’t supported by statute. But the managers rule is supported by the employment at-will doctrine. The employment at-will doctrine is a judge-made creation that gives employers almost free reign to fire employees. Ronald Standler’s article on the history of the doctrine is a must read.

Of course anti-discrimination and retaliation statutes limit the powers of employers to fire employees. But in order to uphold the employment at-will doctrine, courts create other rules like the managers rule to minimize the impacts of these laws.

Employees can’t count on worries over bad publicity to get a good outcome in a case against an employer

Posted on November 22, 2021 by Jon Rehm

“They aren’t going to want the publicity.”

In my experience, this phrase is right up there with “This isn’t about the money” when it comes to red flag phrases from potential clients looking for legal representation in a case against their employer or former employer in a wrongful termination or discrimination case.

Like a lot of common misconceptions about the legal process, “They aren’t going to want the publicity” is based on some truth that is stretched beyond reality. Companies like to keep litigation or disputes with former employers private. Employers usually demand confidentiality to settle cases out of court. Sometimes even routine company documents are subject to protective orders from courts.

But the threat of bad publicity is almost never sufficient to settle a dispute with employee quickly and on favorable terms to an employee. This post is about detailing some of those reasons.

Is your dispute with your employer newsworthy? In other words, why would anyone else be interested in what happened to you at work? If the mistreatment is based on something like sex, race, religion or disability, etc. you at least get your foot in the proverbial door. Same if you are opposing some unsafe or unlawful practice by your employer. But if your mistreatment is more or less a personal dispute between you and your boss or you and your co-workers, it’s not news.

Not all news is fit to print – Let’s say you have a legitimate legal case against an employer or former employer, does that mean the media will be running to put a microphone in your employer’s face? If what you are alleging is common place or typical then probably not. Maybe if something happens in your case like a favorable decision on a motion or verdict, then maybe that will merit some media coverage. But most civil cases don’t garner media attention based on merely filing a lawsuit.

Less news is fit to print nowadays – There is less coverage of local news due to the decline of local newspapers. So even if you have a strong legal case that may have some public interest, there are fewer reporters that would be able to cover your case. Early in my practice, up until about 2010, the local Associated Press would call me routinely about filings in my federal employment cases. Not anymore. Newsworthy cases may now get picked up in outlets like Law360 or Bloomberg Law that are read by lawyers, but it’s less common to read about civil cases in general publications.

Negative publicity is far from fatal for major employers – So let’s say that your case against your current or former employer garners some media attention and that attention is unfavorable for your current or former employer. If it’s a major employer, they likely have a public relations department to spin the story and more importantly create an ongoing stream of positive coverage that overwhelm the negative news about your case. Major employers also spend on advertising and corporate philanthropy to bolster their image. So the negative press from your claim, may be entirely cancelled out by what a companies efforts on advertising and public relations. Bluntly, major employers budget substantial sums to fight negative publicity.

Negative publicity may not change how your employer does business– Sometimes employees want employers to change how they do business. Maybe you can do that through litigation, but actions like collective bargaining and political organizing are the more effective in accomplishing those ends. But again, major employers already spend large sums of money on regular basis on the political process through lobbying and campaign contributions.

In short, employment law cases are about employees trying to correct harms done when their employers violate employment laws. While these harms can be newsworthy, they rarely garner media coverage. Even when they do, that media coverage usually doesn’t lead to substantial changes from employers without organized and sustained pressure. The potential bad publicity for the mistreatment of an individual employee is not going to lead to those changes in and of itself. An employee seeking justice, financial or otherwise, from mistreatment in the workplace is likely going to be in for relatively long-hail.

Workers' Compensation Watch

Published by Rehm, Bennett, Moore & Rehm

Published by:

Nebraska bill aims to expand vaccine exemptions

New year, new you, but same old work comp insurance companies when it comes to exercise for injured workers

Apple whistleblower raises issues over hazardous office spaces that could be disturbingly common

Maximum benefit rate for workers comp. benefits in Nebraska increases unprecedented 7.5 percent for 2022

Amazon warehouse tornado tragedy highlights importance of neutral risk in workers’ compensation

Why injured workers are joining the “Great Resignation” and why they should be able to keep their workers comp. benefits

Does the “managers rule” greenlight retaliation against whistleblowers?

Employees can’t count on worries over bad publicity to get a good outcome in a case against an employer

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