Tag Archives: presumptions

A new federal thumb on the scale for COVID occupational disease claims?

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Last month the U.S. Department of Labor announced an emergency standard for COVID-19 safety for health care workers due to the risk of COVID-19 exposure.  The regulation may make it easier for workers in states like Nebraska to bring workers’ compensation cases for COVID-19 exposure on the job.

Nebraska allows workers to recover for occupational diseases in addition to injuries or conditions caught directly arising out of and in the course of their work duties. An occupational disease is one that is particular to an occupation or line of work. The Department of Labor’s findings about COVID-19 exposure in health care, could be a thumb on the scale for workers, or their surviving dependents, trying to bring a workers’ compensation claim.

While the new rule is helpful, it may not be game changing. Workers compensation laws are state laws. A federal regulation wouldn’t bind a state court or agency deciding a workers’ compensation case. Additionally, many states have passed COVID-19 presumptions under their state’s workers compensation laws for health care workers. This means that if certain classes of workers catch COVID-19, it is presumed to be work-related. This forces employers to show some non-work-related exposure to avoid liability,

Nebraska has not passed any sort of COVID-19 presumption for any workers.

Some employee and public health advocates have criticized the new standard as not covering more workers. I sympathize with that view. I will not blindly cheer for a Democratic administration. The Obama administration left a lot to be desired when it came to workplace safety issues – a lot. But the new COVID-19 standard for health care workers is an improvement on no standard.

Earlier in the pandemic, when Eugene Scalia was Labor Secretary during the Trump administration, the Department of Labor implemented rules that it made it harder for employees to track workplace COVID exposure. I can’t argue that a thumb on the scale for workers/labor is better than a thumb on the scale for management/capital. But the federal government needs to be more aggressive in enforcing workplace safety rules.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Will COVID barriers do double duty for workplace safety?

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Barriers designed to stop the spread of COVID-19 are popping up in stores, restaurants and offices. These barriers may also protect employees from violence.

A 2012 study by the Indiana Department of Labor showed that bullet proof glass was effective in protecting convenience store clerks from violence. The study also showed that barriers discouraged violence by preventing criminals from climbing or jumping over counters.

Even before COVID-19 retail and service employers were taking measures to protect employees against violence. Hy-Vee, a major Midwestern grocery chain, ended 24-hour operations this year before the COVID pandemic. That move likely protected employees from violence. Last year, I wrote about a local bank that started to restrict entry and another bank that put up barriers to protect tellers.

Companies took these measures before the term “essential worker” entered widespread usage and applied to retail employees. One silver lining to the COVID crisis is the newfound respect gained by retail, delivery, warehouse and other service employees like fast food workers.

The rise of the essential worker

This newfound respect could translate into newfound political clout. Many states have proposed laws giving workers a presumption of compensability for COVID-related claims under workers’ compensation laws. Some states have included retail employees within those presumptions.

Federally, Rep. Carolyn Maloney (D-N.Y.) introduced the Pandemic Heroes Compensation Act of 2020. Modeled after the September 11th Victim Compensation Fund, the bill would allow essential employees or their families to claim compensation for injuries related to COVID. This fund would either supplement or provide an alternative to state workers’ compensation laws.

I believe this a semi-revolutionary development. Pre-COVID, first responders like police and firefighters held a privileged status within workers’ compensation laws. For example, in many states firefighters get a presumption of compensability for heart attacks. For non-firefighters looking to have an on the job heart attack covered by workers’ compensation, there is a higher standard of proof than a regular workers’ compensation injury.

First responders, in Nebraska and in many other states, can receive “mental-mental” workers’ compensation benefits. Mental-mental injuries are mental injuries without a physical injury. All other workers need to show some physical injury to have mental trauma from a workplace incident covered by workers’ compensation.

I believe politics explains why first responders have more protections under Nebraska workers’ compensation law. Politicians want support from first responders. First responders also have enormous political muscle through their unions. Most retail workers, at least in Nebraska, aren’t represented by unions. Some management-side attorneys worry, for good reason, that more employees may form unions in the wake of the pandemic. Labor organizing among retail employees could be necessary to translate goodwill from the public into improvements in working conditions.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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