Duff: An By accident Shut Studying of a COVID-19 Invoice| Employees Compensation Information

By Michael C. Duff

Tuesday, February 23, 2021 | 41 | 0 | min read

I accidentally came across a COVID-related bill recently advertised at Arkansas House that looked employee-friendly at first glance over the past few weeks.

Michael C. Duff

It would exclude COVID-19 from the otherwise categorical exclusion of “common life diseases” and consider COVID as an occupational disease that can be proven by “an excess of evidence”. So far, so good from the employee’s point of view.

However, the bill also states in Section 2 (a) (3):

Obligation of an employee to carry out work if the employer knows that, within the normal course and scope of the employee’s work, he or she is exposed to the Coronavirus 2019 (COVID-19) or the severe acute respiratory syndrome Coronavirus 2 (SARS-CoV-2) or exposed to another one of its mutations is possible, probable or certain is unintentional behavior that would remove the employer from the protection of this chapter.

This bill should be viewed in the context of Governor Asa Hutchinson’s previous order that broadly grants business immunity for negligent conduct related to COVID-19, with the caveat that “immunity does not apply to willful, reckless, or willful misconduct.”

The text does not make it clear whether the standard is meant to be the same as “gross negligence,” the limitation often mentioned in state immunity laws that appear elsewhere in the country.

Of course, the Hutchinson decree immediately kicked gig workers (as independent contractors rather than employees) out of the box because they have no access to the Workers Compensation Act (as non-employees) related to COVID-19 damage, and now no longer have access have remedy for negligently caused COVID damage.

If the tort law had only given workers remedies against intentional acts at the beginning of the compensation scheme, there would have been no big deal. Why should employers have to negotiate lower liability through employee compensation when they have almost never lost cases?

Make no mistake: the immunity standards are designed in such a way that employers almost never lose a crime claim (and employee contingency lawyers would almost never take cases).

However, the employee compensation law under discussion is more secretly harmful to regular employees. If a state allows an exemption from exclusivity for willful acts, an employee could at least try to meet the higher standard of offense (that an employer “knew with considerable certainty” that an injury was going to occur, or something similar), particularly in connection with egregious cases.

Even if the employer knew with certainty that an employee must be exposed to COVID-19 (in other words, this deliberate tort was almost a given when a cause was established), the employee’s remedy would be limited to compensation only. All employee compensation claims would be firmly anchored in the employee compensation system. Civil judges could quickly dismiss criminal claims filed by workers for reasons of jurisdiction.

However, the extension of the COVID-19 entitlements to employee compensation is not accompanied by a presumption of causality. A cynic might say this is where claims will die (although I think the unprovability of COVID-19 has been grossly overstated under the traditional “arising from” element).

Assuming that a government system acts as if COVID-19 cannot be detected by traditional “arising from” funds, this mechanism that collects claims may be some kind of empty prepayment: Just because employee compensation is a claim ” covers ”, it does not mean that the applicant will receive an award, which means that if the exclusivity blindly applies to all“ insured ”injuries (see Larson’s treatise and Player & Burton,“ The Deficiency Correspondence between work-related disability and admission of employees “” Compensation payments “, 496).

You might say, “This is not a big deal, because the person who cannot win a claim for employee compensation (without a presumption of the cause of the damage) cannot win a tort claim either.” The rejoinder to this argument is that willful tort will remain generally available under the state immunity laws of COVID-19, have higher compensation and settlement potential, and are governed by tort principles that may be unpredictable in multi-cause contexts – e.g. . B. the claim that COVID-19 was caused by both work-related and non-work-related factors.

Arkansas has apparently adopted the “Essential Factor” test for tort claims (see Green v. Alpharma), a test that states that a plaintiff can recover from a defendant even if there are other causes of harm if the conduct of the Defendants a “. Material factor” in causing the damage, regardless of the existence of the other factors.

Ultimately, I think this intended repeal of the Arkansas Workers Compensation Act could require broader legislative recognition that the double denial could be heading towards a constitutional challenge. The maneuver therefore consists in asserting claims within the workers’ compensation (by not referring to COVID-19 as a “common life sickness”) so that in theory the remedies for the workers have not been completely cut off without a causal discharge in the EU form a presumption for applicants.

Michael C. Duff is Assistant Dean of Student Programs and External Relations and Professor of Law at the University of Wyoming College of Law. This entry was republished with permission from the Professors’ Blog of Employee Compensation Law.