Will COVID-19 'Shock' Workplace Injury Law Like the Railroads of the Early 20th Century?

Michael C. Duff

July 2, 2020

Workers' compensation was created as a means to an end and not an end in itself. It addressed the outrageous frequency of workplace injury and death caused by railroads in the late 19th/early 20th century. The unholy trinity of employers' affirmative tort defenses – assumption of the risk, contributory negligence, and the fellow servant rule – meant that workers or their survivors were not being compensated adequately or, in many cases, not at all.

For this reason, expert American investigators were dispatched to Europe between 1909 and 1911 to study the existing workers' compensation systems there. Those experts' work set American workers' compensation baselines. The oddity is that while Europeans moved on to universal benefit systems, we continue to use their 19th century work-injury system. (I write about these developments here). Additionally, the United States briefly flirted with the prospect of broadly establishing "liability statutes" in which employees' burdens for bringing railroad and maritime civil actions were lightened and affirmative defenses limited. (These experiments have more narrowly lived on in the form of FELA and the Jones Act).

The railroad experience, and dangerous industrial work generally, made everyone realize, virtually simultaneously, that the then-current system was not going to work. Workers' compensation was the result. Perhaps something like workers' compensation would have emerged even without railroad injuries, but we will never know.

Of course, American society might have said, circa 1910, "Well, because workers cannot prove negligence, and affirmative defenses will probably defeat their tort claims, there will simply be no recoveries for workers." It would have been a lot cheaper for business, in monetary terms, if we had set up a 1910 version of a Mitch McConnell liability shield. Instead, we collectively said that if the law was not up to the task of remedying injuries, the law would have to change.

So, when folks confront workers' compensation causation presumptions (or similar novel solutions), and react by saying, "That's not what workers' compensation was meant to do," I think they are missing the forest for the trees. Workers' compensation was "meant" to adequately remedy workplace disability and, more narrowly, to fix tort's shortcomings. Sure, it was all supposed to work at a reasonable cost – but it was supposed to work. A cheap, non-working system is no system at all. If workers' compensation, standing in the shoes of tort law, can no longer adequately remedy workplace disability, my response is not to throw up my hands and say, "Oh well, I guess there will be no recovery for disability." Rather, I start wondering whether workers' compensation has become more ornamental than useful.

I know that we are in "historical waters" when folks start discussing, with complete seriousness, whether all negligence causes of action and all workers' compensation remedies might be discarded for an indeterminate amount of time, and whether it is really so bad for employers to negotiate preinjury waivers of liability with their employees. My answers to these questions, of course, are "no" and "yes," respectively. But as I read reports of a new H1N1 virus, ruminate on the likelihood of a severe and long-term economic recession, and contemplate what I think will almost certainly be increased reshoring of industry to the U.S., I cannot help but wonder whether we will look back on spring 2020 as our version of the railroad "shock" of the early-20th century.

I used to assure my late dad that it was really OK for me to be taking so many legal history courses in law school (he was a non-lawyer and was not convinced). Somewhere along the line, my professors convinced me that history was always under construction. It is now almost impossible for me to believe that we are not on the precipice of profound changes to our workplace injury – and labor and employment – laws.

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