Duff: A Presentation on Employees’ Compensation COVID Presumptions| Employees Compensation Information

By Michael C. Duff

Tuesday, February 16, 2021 | 34 | 0 | min read

Back on January 22nd, Professor John F. Burton and I presented at a Workers’ Injury Law and Advocacy Group (WILG) webinar entitled “COVID as an Occupational Disease: How Do Different States Deal With These Claims?”

Michael C. Duff

The edited contributions of the webinar were published in this report published by WILG. Most of the report consists of Burton’s voluminous paper. I wrote a shorter paper on the legal mechanisms of how presumptions work, which gave me the opportunity to write the delightful phrase “bursting bubble conjecture”.

An important difference between Burton’s views and mine is that while we all support the idea of ​​causal guesswork, he would automatically limit the assumptions to a small universe of first responders and narrowly defined (possibly CDC categories) “essential workers”.

On the other hand, I would rather have a robust, transparent and democratic debate about who qualifies as a key worker. It is now very clear that COVID-19 has had varying effects on color communities, and the elephant in the room believes that limiting COVID causation assumptions to first responders may privilege relatively high-paid white male workers.

I am not saying that such restrictions are definitely wrong. I just think that the question of eligibility should be discussed transparently and thoroughly and that the premise should be subject to public scrutiny.

Burton and I achieve something in common (and perhaps a compromise) through his very interesting suggestion that guesses could be raised by referring to jobs cited by OSHA: Cause guesses could be applied to jobs known to be against OSHA COVID- violate related safety standards.

Such a mechanism may be preferable to presumptive structures that are used ex ante (even if unintentional) to discriminate against low-wage workers, who are predominantly colored and female. In a way, it avoids the question of who is important and puts coverage where it’s needed most.

The presentation can be seen here.

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 Blog of Professors for Employee Compensation Law.