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Friday, April 17, 2020

Back to Work Needs Congressional Support

As employee and employers look to their state governor’s for direction upon return to work, an undiscussed issue remains, the responsibility for work-related occupational exposures. While this is new territory, one might look toward other potential mass exposure scenarios in the US history for guidance.

The potential for major occupational exposure is almost unfathomable, both in catastrophic risk for potential illness, as a result of COVID-19, a highly contagious infectious disease.  The initial crafters of workers’ compensation acts did not include occupational exposures in 1911. Subsequently, in the 1950’s original acts were amended to shift silica exposures from unlimited tort damage claims, to a more limited administrative programs called, workers’ compensation. Even though the Spanish Flu of 1918 was a global pandemic, consideration of inclusion into the original workers’ compensation system, was not considered.

Today, New York Governor Andrew M. Cuomo today outlined a stellar blueprint to un-pause New York, getting people back to work and easing social isolation without triggering renewed spread of the COVID-19 pandemic. The ultimate plan will be implemented in coordination with other states in the multi-state council. New Jersey, among other states, have agreed to open the economy for business in a unified partnership.

  • Do No Harm - Step one is to continue controlling the rate of infection. This includes extending the NY Pause order until May 15th and implementing additional measures to reduce the rate of infection, including requiring masks in public when social distancing is not possible.
  • Strengthening the healthcare system - Step two is continuing the surge and flex strategy to ensure anyone who needs medical attention gets it, building out the strategic stockpile of PPE and other medical equipment, and sharing resources amongst states and localities.
  • Testing and Contact Tracing - The best tool to inform decisions and calibrate progress of any phased reopening of the economy is through both diagnostic and antibody testing. The states need the federal government to partner on this effort and bring it to the mass scale that is needed. With the help of an army of investigators, contact tracing needs to be done to help limit the virus spread.
  • Phased Return to "New Normal"

    1. Evaluating Risk by Industry: The 'Un-Pause NY' approach is designed to open businesses in phases of priority. Businesses considered "more essential" with inherent low risks of infection in the workplace and to customers will be prioritized, followed by other businesses considered "less essential" or those that present a higher risk of infection spread. As the infection rate declines, the pace of reopening businesses will be increased.
    2. Precautions and Practices for businesses to consider to guide phased return to "new normal":

      • Transport: Ensure employees have means for safe transport (i.e., masks, gloves for public transit) or require telecommuting/work from home.
      • Workplace: Ensure workplaces are designed to include social distancing measures (i.e., desks six feet apart, conference rooms redesigned), telecommuting for those who can and the most vulnerable
      • Customer Interaction: Ensure measures designed to ensure minimal contact with customers, ensure public-interacting employees have necessary protective supplies such as gloves, masks, etc.). Special precautions should be taken for businesses that primarily interact with the most vulnerable populations.
      • Proactive Infection Plan: Ensure protocols in place should an employee develop COVID-19 symptoms or test positive (i.e. work from home plan)
Cuomo said, ”Now that we've shown we can flatten the curve and our efforts to control the spread of the virus are working, we must focus on a smart, effective plan to un-pause New York," Governor Cuomo said. "The first part of the plan is to do no harm - don't let that infection rate go up to the best of your ability and don't lose the progress that we have made. Second, now that we have some stability in our health care system after a weeks-long overdrive, we continue to strengthen that system and ramp up testing and contact tracing to identify those who are sick and isolate them so they don't transmit the virus to others. Then we can focus on phasing an economic return to the new normal - but we need all those activities going on at the same time for our plan to un-pause New York to work."

Historically, the September 11, 2001 [911], horrific terrorist attacks on citizens in New York City, Pennsylvania, and the Pentagon could be consider a similar type of an occupational event, albeit on a much more limited scale and for a much shorter duration. Until a safe vaccine is developed, it is estimated that the COVID-19 threat will continue for another 16 months, at least.

The 911 event raised issues as to insurance company solvency, and Congress enacted .The Terrorism Risk Insurance Act [TRIA] , a United States federal law signed into law by President George W. Bush on November 26, 2002 created a federal "backstop" for insurance claims related to acts of terrorism. P.L 107-297.President Obama signed the Terrorism Risk Insurance Program Reauthorization Act of 2015 (H.R.26) on January 12, 2015. The program was extended through December 31, 2020.

There should be a public discussion of how to create a risk/benefit initiative between the health and safety of workers and the start-up of the economy. NPR’s Planet Money, in a recent episode, “Lives v Economy,” framed the issue, “A question we've been hearing lately: ‘Is it worth it to shut down the economy to save lives?" Or "Should we let people die to save the economy?’ The only way to answer this question is to figure out what a human life is worth ... in dollars. This happens all the time. In fact, U.S. government federal agencies have a very specific answer. They say a human life is worth about $10 million.”

Right now the country is facing a monumental crisis, as health care workers are at a heightened risk for COVID-19. Additionally, the Occupational Health and Safety Administration [OSHA] has not initiative to mandate even a temporary crisis standard to protect our nation’s workers. The President has move to shift responsibility, and scapegoat, the World Health Organization [WHO], as well as the governors of each state. The nation lacks centralized management for health care worker and first responder supplies, testing and health/safety enforcement protocols.

A discussion should be now occur in the halls of Congress and national legislation should be enacted mandating worker health and safety. Economically, TRIA type legislation must be crafted that provides for prevention/research/treatment as well as compensation on a national level. Workers should not need to choose whether they will be best protected in a “blue” or “red” state. This fractionalized national policy will lead to prolonged, 2nd, 3rd and 4th waves of the COVID-19 virus. On an urgent basis, a consistent, logical, scientific and non-political approach must be implemented by Congress.

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Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters). For over 4 decades the Law Offices of Jon L Gelman 1.973.696.7900 has been representing injured workers and their families who have suffered occupational accidents and illnesses.

Blog: Workers ' Compensation
Twitter: jongelman
LinkedIn: JonGelman
LinkedIn Group: Injured Workers Law & Advocacy Group
Author: "Workers' Compensation Law" West-Thomson-Reuters