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.