Covid and The Courts –
What Will it Mean for Workers Compensation?
A series of recent lawsuits might give employers a sneak peak into how the courts may handle workers’ compensation
litigation in the evolving era of the Covid-19 pandemic.
In the past three months major corporations such as Amazon, Walmart, and fast-food giant McDonalds have responded
to lawsuits stemming from alleged inadequate implementation of, and adherence to, public health directives aimed at
protecting the workforce against the spread of the virus.
In the case of Amazon, three Staten Island warehouse workers have sued the giant corporation for failing to adhere to
public health guidelines thus causing injury and death to employees and their families. Plaintiffs seek an injunction
requiring Amazon to comply with public health guidelines as well as an order that would declare the company a public
In April, a wrongful death suit was filed against Walmart by the family of a deceased employee who died from
complications of Covid-19. Plaintiffs assert that there were several employees who displayed symptoms and
that another employee died a few days later.
Fast food Giant McDonalds faces a lawsuit from a group of Chicago workers over whether the company adhered
to expert guidance on how to protect its workforce from the spread of Covid 19. The court entered a preliminary
injunction requiring McDonald’s to enforce mask wearing policies and provide social-distance training.
What Will it Mean for Workers’ Compensation?
As the courts are just beginning to respond to such lawsuits it remains to be seen how the gavel will fall in terms of
courts’ and juries’ sympathies. But given the unpredictable and potentially devastating financial impact of trial
outcomes, it seems abundantly prudent that employers take actions to ensure that public health directives such
as compulsory mask wearing, and social distancing, are stringently upheld even when states do not mandate the
IEA and Workers’ Compensation
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Return to Work issues in the wake of Covid-19
Back in 2010, the WCRI published a study (Recession, Fear of Job Loss, and Return to Work) which posed the question as to what the impact
of a doubling of the unemployment rate would have on longer term unemployment. For the purposes of the study, longer-term was defined as
a duration of 2.5 years after an injury. When the study was originally published, most of us could not have foreseen the Covid-19 pandemic,
or the shuddering effects of an economy that ground to a halt at breakneck speed.
The on-going impact of the pandemic has resulted in millions of vulnerable jobs and countless shuttered businesses, some of which may never
reopen. With an eye to the inevitable and immediate trickle down impact on workers’ compensation, a recent WCRI blog piece returned
to the 2010 study as a reference point to explore how recession from the economic fallout of COVID-19 can potentially affect return-to-work
programs. The study explored the effect of a doubling of the unemployment rate during a recession and its findings
indicate the following:
Long-term unemployment rate increases from 14.7 to 18.7% when the unemployment rate is doubled. Unsurprisingly, the scarcity of
work opportunities in a recession increases the likelihood of long term unemployment.
The rate of fear of job loss in injured workers increases from 35.5 to 51.3% when the unemployment rate is doubled. If an injured worker
fears the loss of employment there is a greater chance of premature return to work which in turn increases the potential for re-injury.
The WCIRB blog piece cites the biggest difference between this potential recession and prior recessions: COVID-19 resulted in a rapid
stalling of the economy following closures of bars, restaurants, concerts, sports events etc. The economy fell off a proverbial cliff causing a more
profound effect as employment possibilities become very scarce, very quickly. If the economy reboots quickly there will be a lessening effect on
long-term unemployment. The huge numbers of vulnerable jobs, the shuttering of business that may never reopen, and the uncertainty of the
timeline for a re-boot makes for challenging times ahead for workers’ compensation programs.
Ref Sources: WCRI Workers Compensation Research Institute
Social distancing is important for our families, our co-workers, and our communities. And right now we are part of a world-wide family
working together to mitigate the unprecedented impact of Covid19.
We know there is an undeniable impact to your business, your budget, and your career goals. Many of you are now working from home.
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Prop 64 says YES to Marijuana But Doesn’t Address Workplace
In 2016 voters in California legalized the use of marijuana by passing proposition 64. This legislation allowed for use of the drug, while
at the same time preserving the right of employers to maintain a drug-fee working environment, and the ability to terminate employees
who tested positive for drug use. This includes those who use marijuana for medicinal purposes. However, according to Tamar Todd, who
lectures on marijuana at U.C. Berkeley, and is Vice Chair of the California Cannabis Advisory Committee, “People can still be drug tested
and disciplined based on a positive result even if they are using in compliance with state law, not at work, and not impaired at work.”
Protecting Medical Use and Addressing Workplace Issues
Some argue that use of medical marijuana should be viewed in the same light as any other prescription medication, and that medicinal
users should not face discrimination in hiring or in termination practices. In response to these concerns, Assemblyman Rob Bonta
(D-Alameda), proposes a bill that would require employers to make accommodations for workers using medical marijuana. The new
bill would provide protections for job applicants and employees in non-safety sensitive positions. Airline pilots, truck drivers, and
police offices would be exempt as would employers with federal contractors which are required by law to be drug free environments.
Marijuana Use and Safety in the Workplace
Opponents of the bill argue that pubic safety implications of marijuana use may still not yet be fully known or understood.
The Los Angeles Times reports that positive drug testing of employees in non-safety sensitive positions in California jumped from 2.3% in 2015,
(one year before marijuana was legalized in California) to 3.1% in 2018 and that in 2014 the rate of positive test results nationwide hit a 14
year high. The National Institute on Drug Abuse asserts that postal workers who tested positive for marijuana had 55%
more industrialaccidents, 85% more injuries, and 75% greater absenteeism compared to those who tested negatively.
Workers’ Compensation, To Pay or Not to Pay
According to a recent article published by Risk&Insurance, Marijuana impairment testing is also a factor that must be considered in
workers’ compensation. Injured workers using the drug may need to be tested for impairment before returning to work. Moreover,
as legalization of cannabis use becomes more expansive, the differences between state and federal regulations around products and
their use may lead to confusion for workers’ compensation payers. For now though, more states with legal access to medical marijuana
are ruling that workers compensation payers have to pay up for use of the drug.
16 States Provide Workplace Protection for Medical Marijuana. Could California Be Next,
by Courtney DuChene, Risk&Insurance, Feb 2020
Legal Marijuana use still costs people jobs. A new California bill takes on the issue, by Patrick McGreevy, Los Angeles Times, Feb 2020