Workers' Compensation: Protecting Workers During the Pandemic

Workplace safety is a significant issue in the waning days of the Trump Administration as Congress struggles to pass legislation before the end of the calendar year when CARES Act support terminates for many American workers. As the winter/holiday season coronavirus surge challenges hospital capacity and causing additional closure of non-essential jobs, the Republicans remain adamant about restricting lawsuits against employers.

The Occupational Safety and Health Administration ( OSHA) has failed to protect the workplace during the COVID Pandemic. OSHA has not promulgated an enforceable COVID-19 standard for workplace safety to prevent infection from coronavirus.

The principal remedy for injured workers has been traditional workers’ compensation claims.

The state-based programs provide limited economic relief in temporary, medical, permanent disability, and dependency benefits. In many jurisdictions, causal relationship is difficult to prove when the condition it’s an infectious disease. Like New Jersey, some states have eased the burden of proof by enacting a rebuttable presumption of the causal relationship between COVID-19 and essential workers.

Senate Republicans are maintaining a red line against the approval of any additional COVID relief legislation was out of prohibition against liability claims against employers. In reality, there have been a few claims. A database maintained by Lex Machina reflects that few cases are being filed against employers for maintaining an unsafe working environment.

As government power transfers to the incoming Biden-Harris Administration, more attention will inevitably become focused on workplace safety through regulation and enforcement. Employers need to be cautious, even with vaccine deployment, as asymptomatic transmission may occur in vaccinated employees.

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