Michael Duff Archives - Workers' Compensation Watch

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.

Last week daily COVID-19 related deaths reached a daily rate equal to the September 11^th terror attacks. Weekly unemployment claims remained higher than during the 2008-2010 recession. But never fear, a group of bi-partisan group of federal legislators came up with a solution:

Protecting corporations from lawsuits related to COVID-19.

The liability protections were part of a “super-skinny” relief package put together by the so-called “Problem Solvers Caucus” and supported by Democratic congressional leaders.

University of Wyoming Law Professor Michael Duff wrote a much better version of the blog post that was rattling around in my head on treadmill on Thursday morning. I’ve written plenty about how workers’ compensation is an inadequate remedy for COVID-19, but that it blocks efforts for workers to seek justice outside of workers’ compensation.

Duff’s points out tht more workers, particularly in the gig economy, are denied even basic employment protects workers compensation. Liability protections would take away the right of contractors or gig workers to sue for catching COVID due to corporate negligence. Duff called the proposal “treacherous” and “not civilizational.” In the final paragraph he more or less states the liability provision creates a constitutional crisis.

I agree with Professor Duff.

The constitutional crisis is that Congress wants to strip rights from essential workers. Sure, the legislation only calls for a liability shield for six months, but how easy would it before Congress to extend the shield once it’s implemented?

Maybe this sounds like a paranoid slippery-slope argument, but one of the raps on outgoing President Trump was that he violated norms with his behavior and conduct which undermined the Constitutional order. I think that that’s true. Norms were supposed to be respected with the election of Joe Biden and the return of “the adults in the room.” A bi-partisan group of self-proclaimed problem solvers defines what it means to be “the adults in the room.” Turns out the “adults in the room” don’t really respect norms either. The norm in this case is the basic ability of a person to have some access to the court system to address harm

The poor behavior of the “adults in the room” is dispiriting to say the least. Advertisers and politicians have extolled the “essential worker” throughout the pandemic. In some states, New Jersey as an example, that talk has turned into helpful action for essential workers. But hearing politicians who vote for COVID-19 liability shields celebrate essential workers rings hollow.

The fact that tort reform is part of a take or leave it deal, where the consequences of leaving it will be millions of people slipping into destitution is disturbing.

Workers' Compensation Watch

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Tag Archives: Michael Duff

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

Sacrificing essential workers in the name of “bipartisanship”

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