An April 21 letter from the VA GOP to Governor Northam urged him to create a plan for the reopening of nonessential businesses, even if only partial, as soon as possible. The letter stated that such a plan “cannot be done without implementing protocols to keep customers and employees safe.” That is a rational challenge, one faced just over 100 years ago by virtually every state in the nation.
Although not defined as global, the Industrial Revolution was at least international and spawned an epidemic of injuries and death in the United States. Historians noted:
At the turn of the century, industrial accidents were claiming about 35,000 lives a year and inflicting close to 2,000,000 injuries. (Lawrence M. Friedman, History of American Law.)
The horrifying and tragic deaths of 146 young men and women in the Triangle Shirtwaist Factory fire in New York City in 1911 was a turning point for state governments to adopt a variety of industrial protections for workers, including workers’ compensation. Often dubbed the “bargain” between employees and owners whereby employees traded the right to sue employers directly in exchange for medical treatment and wage replacement. In effect, employers and owners were shielded from direct liability thereby protecting current and future capital finances.
The new statutes reversed the elegant but impenetrable judicial doctrine of “assumption of risk,” which placed all responsibility upon employees. Instead, workers’ compensation laws reversed the assumption into a presumption that a claim for work-related injury or death was to have arisen out of and in the course of employment.
Now, as the federal government is affording states a trillion-dollars in a massive program to spur the nation’s economy and assist employees to survive the economic holocaust, employers and their lobbies are petitioning for protection from customer and employee liability claims occasioned by reopening for business and resulting in COVID-19 infections.
Thus, the question arises as to the extent to which “protocols to keep customers and employees safe” will be implemented or accepted. That protocol already exists in the form of the Commonwealth’s workers’ compensation scheme. While it may require some tinkering and adjustment, the bones of an outline to protect employees and deflect employer/owner liability exists. For example, many states have created a “state insurance fund” to compete with commercial carrier to guarantee businesses low-cost insurance coverage, including disability benefits. Virginia does not have such an entity.
COVID-19 presents an opportunity for Virginia to bring up to date its workers’ compensation laws in the interests of public health and to include enhanced protection for employees against an invisible threat…. The state’s authority to adopt and enforce its emergency closure actions is now being challenged, largely by free marketers from the right. It is incumbent upon that leadership to consider the health of all Commonwealth citizens–not merely the economic health of employers–above concerns about liability.
VoxFairfax has previously discussed the antiquarian public policy and judicial view toward the Commonwealth’s workers’ compensation laws (Three Centuries of Indecision, March 23, 2020; https://wp.me/p9wDCF-1di). In the same way that the Industrial Revolution motivated government to address a visible epidemic endangering citizens, COVID-19 presents an opportunity for Virginia to bring up to date its workers’ compensation laws in the interests of public health and to include enhanced protection for employees against an invisible threat. The plea for government action in this regard was ably expressed by a group representing Virginia sheriffs in an April 10 letter asking that the Governor and Attorney General:
take all actions necessary to extend to all first responders the same presumptive illness provisions for the coronavirus as are in place for other job presumed illnesses, such as heart and hypertension related diseases.
First responders are required to run toward the danger and must continue to do their jobs regardless of the risk, exposing themselves and their loved ones to the potential dangers of this pandemic. [I]t is important to know whether a COVID-19 illness contracted by a first responder is covered under the Virginia Workers’ Compensation Act and related statutes.
The state’s authority to adopt and enforce its emergency closure actions is now being challenged, largely by free marketers from the right. It is incumbent upon that leadership to consider the health of all Commonwealth citizens–not merely the economic health of employers–above concerns about liability. Call them employees or workers, they too are customers and members of the public entitled to equal treatment and protection under government authority. Virginia should not waste this opportunity to modify an existing solution that is acceptable to both ends of the political spectrum and has been in place since 1914.