Opinion Mondays: State Governors Have Pens, Who Needs Legislatures?

Since the outbreak of the coronavirus pandemic, a number of state governors (e.g., California, Kentucky, Missouri, and North Dakota) have issued executive orders promising extended workers’ compensation benefits and, in a few cases, presumptions of compensability, in favor of some who battle the virus on the front lines. Such orders beg some non-rhetorical questions. For example, can a governor effectively amend workers’ compensation law by executive fiat, even in an emergency? Can a governor saddle an employer with a responsibility that is not spelled out in law? Can a governor shift the burden of proof in a workers’ compensation claim from the claimant to the employer? If governors have these powers, what need have we for state legislatures?

California — Earliest Example of Executive Action Affecting Workers’ Compensation

By my examination, the earliest (and weakest) executive order by a governor impacting the law of workers’ compensation was that of California Governor Gavin Newsom on March 12, 2020. Newsom’s order did not directly mandate any alteration of rules and regulations regarding the compensability of coronavirus claims. Guidance issued thereafter by the state’s Labor & Workforce Development Agency goes further, however, indicating that “if workers are unable to do their usual job because they were exposed to and contracted COVID-19 during the regular course of their work, they may be eligible for workers’ compensation benefits” [emphasis added]. That pronouncement is little more than a truism. Nevertheless, the statement by LWDA signals that the fact that the coronavirus is rampant in the public at large will not, in and of itself, be a barrier to recovery of workers’ compensation benefits in California.

Washington Governor Announces for Coverage of Quarantined First Responders

On March 5, Gov. Jay Inslee, accompanied by Joel Sacks, Director of the Washington Department of Labor & Industries (L&I) announced that L&I was immediately changing the state’s workers’ compensation coverage for health care workers and first responders who are quarantined by a physician or public health officer. Inslee stated, “These health care workers and first responders are protecting our communities. They need to know that we have their backs. This is the right thing to do.”

Governor Inslee’s order, like that announced in North Dakota and Missouri (noted below), provides no help for the countless workers who provide an absolutely vital service: assisting the state’s population to obtain food, water, and necessary medical prescriptions. Nor does the Washington order cover the folks who drive busses and cabs?

Some in Washington state wondered if the order was even necessary, since L&I rules already in place provide for workers’ compensation benefits if health care providers and first responders become sick in connection with their jobs. This coverage would appear to add benefits, however, for those who are quarantined, but who do not actually become ill.

North Dakota Governor Steps to the Microphone

On March 25, 2020, North Dakota Governor Doub Burgum issued Executive Order 2020-12, which purports to extend special worker compensation protections to first responders, health care providers, and certain others identified by statute see N.D. Cent. Code, § 65-01-02(11)(b)(1) who contracted the coronavirus while going about their duties [emphasis added]. As of the date of the governor’s order, fewer than 100 North Dakotans had tested positive for the virus.

As I wrote here, the order granted special status to a host of governmental workers, including juvenile court officers, but provided no relief for the countless grocery clerks, bank tellers, bus drivers, and others who are also on the front line of the coronavirus battle. The effect of Governor Burgum’s order is unclear. Like the California order, it purports to extend coverage to those who can prove their exposure was work-related — one might think a worker wouldn’t need an Executive Order if she or he could do that. Unlike the California order, which included any worker, however, the North Dakota order favors only a few.

“Is this Mic On?”: Missouri Governor Strides Forward

On April 7, 2020, Governor Mike Parson, with state Labor Department Director Anna Hui near his side (they were practicing social distancing) upped the ante, announcing that he had instructed the state’s Department of Labor and Industrial Relations (DOLIR) to implement an emergency rule that presumes first responders who test positive for COVID-19 contracted it in the line of duty. Hui allowed that without the emergency rule, first responders might well have had a difficult time proving the illness was work-related [Heaven forbid they face the same burden of proof as a municipal bus driver]. She added (see this report), “This new rule allows them [i.e., the first responders] to focus on their important life-saving mission knowing that they and their loved ones will be provided for under the compensation program.”

Again, forget coverage for others who must also “focus” on customers in the check-out lane at the grocery store or pharmacy, all the while interacting with potential coronavirus carriers while moving food and other products through commercial channels. Forget the bus driver who is coughed upon while driving his or her bus. In Missouri, they’ll need to follow the usual rules. Not so, of course, for first responders. That the grocery clerk might make $12 per hour and the first responder multiple times that makes no difference.

Kentucky Beshear Issues His Own Order

Easily the most aggressive among the governors is Kentucky Governor Andy Beshear. Having declared his own state’s state of emergency on March 6, 2020, the governor issued an additional Executive Order on April 9, 2020, purporting to alter and suspend existing rules regarding workers’ compensation benefits. The governor initially spoke with sweeping language, noting that “Kentuckians who, because of the nature of their employment, are at risk of being exposed to or contracting COVID-19 should be protected by workers’ compensation coverage.” In his first directive within the Order, he indicated:

1. An employee removed from work by a physician due to occupational exposure to COVID-19 shall be entitled to temporary total disability payments pursuant to KRS 342.720(1)(a) during the period of removal even if the employer ultimately denies liability for the claim. In order for the exposure to be “occupational,” there must be a causal connection between the conditions under which the work is performed and COVID-19, and which can be seen to have followed as a natural incident to the work as a result of the exposure occasioned by the nature of the employment [emphasis added].

While this provision is sweeping in its application to any employee, not just a first responder or health care provider, the initial provision’s impact will likely be minimal. The employee qualifies for the TTD benefits only if he or she can successfully show the occupational nature of the disability. Much like the California and Washington orders noted above, the initial part of the governor’s Executive Order seems merely to restate the rule in effect in Kentucky before the Order.

It is, however, in the third directive that the Governor unilaterally changes state law. There he says:

3. For the purpose of this Order, it shall be presumed that removal of the following workers from work by a physician is due to occupational exposure to COVID-19: employees of a healthcare entity; first responders (law enforcement, emergency medical services, fire departments); corrections officers; military; activated National Guard; domestic violence shelter workers; child advocacy workers; rape crisis center staff; Department of Community Based Services workers; grocery workers postal service workers; and child care workers permitted by the Cabinet for Health and Family Services to provide child care in a limited duration center during the State of Emergency [emphasis added].

Note that grocery clerks are covered; pharmacy and hardware store clerks are not. Bus drivers also gain no coverage.

Commentary: Legislation By Executive Edict

As I have shared and laughed with numbers of colleagues over the years, when it comes to stating my opinions, I am often wrong, but never in doubt. To the extent, therefore, that you disagree with me, I’d love to hear from you. May I say, however, that I hope I’m not alone in seeing danger in this “legislation from the microphone, in front of a camera” approach that has been seized upon by the governors. It isn’t a rhetorical question: Can the governor of Kentucky shift the burden of proof by executive fiat? Can the governor of Missouri decide that some who face occupational risk of contracting the virus are deserving of protections while others — not so much? Can any of these governors saddle an employer with an expense that is not mandated by law (i.e., at least a law that the governor hasn’t unilaterally created)?

Do employers and carriers have a due process argument here? Have their rights and property interests been modified without resort to legislation, all without a hearing before a court of competent jurisdiction? Once a governor has unilaterally declared a state of emergency, can he or she then unilaterally change the state’s laws at his or her whim?

Note the Kentucky brouhaha in recent days, when Governor Beshear announced that he would direct the state’s police to patrol church parking lots on Easter Sunday, take down license plates, identify the culprits who had the audacity to ignore his orders, and turn the information over the health authorities so that the perpetrators could be quarantined. According to numerous reports [e.g., this one from the Louisville Courier Journal], police did just that. The governor had spoken.

Kentucky residents, of course, can’t be trusted to observe rules of common sense [i.e., social distancing] in houses of worship. If 80 people gather there, it’s a public danger. If they gather instead at Target, well, that’s ok, per the governor. I know, I know, at Target, they’re buying food (and toilet paper, hand soap, bicycles, clothing, laptops, etc.). Beware my theological side: “Humanity does not live by bread alone ….” [Deuteronomy 8:3, Matthew 4:4] Spoiler alert: For the first time in 69 years, I stayed home from church yesterday. I’m required by my Faith to love my neighbor and I interpret that as requiring me, as far as it is within my power, to avoid contracting the virus and passing it on to someone else.

Backing down from my pulpit, the question remains: What are the limits of the governor’s power of the pen? When the governors speak of “presumption of compensability,” are they “enacting” the sort of presumption that saddles the employer with the “burden of production,” such as that found in the Longshore and Harbor Workers Compensation Act (LHWCA) [see 33 U.S.C.S. § 920(a)]? Are they instead, enacting the sort of presumption that saddles the employer instead with the much more difficult “burden of persuasion?” Who knows? Perhaps the governors will explain all that later. Again, who needs the legislature?

How does changing the burden of proof rules in effect for workers’ compensation claims aid the state of Kentucky or Missouri, or anywhere else, in maintaining public safety? I admit that the legal subject regarding executive action in times of emergencies is beyond the scope of my expertise. Can society at least slow down long enough to discuss the issue? For an interesting, if not weighty, examination of the subject, check out this 2019 article in Health Security.

Governors Argue that Quick Executive Action is Necessary: What About Minnesota?

In each instance noted above, the state governor has indicated that quick, unilateral executive action was necessary to forestall disaster. Is that really true? Consider the situation in Minnesota. On April 7, 2020, by a near unanimous vote, the state House, whose majority is held by the state’s Democratic-Farmer-Labor (“DFL”) Party, and the state’s Senate, where the majority is in Republican hands, passed H.F. 4537. Instead of signing an executive order, Governor Tim Walz signed the bill — what a novel idea?

In my less than humble opinion, the legislation is deeply flawed. It has one thing in common with several of the executive orders noted above: it isn’t equitable. It creates a presumption of compensability for first responders, healthcare workers, and a limited number of others, all the while ignoring many other Minnesota workers who face high risk of exposure as they carry out their day-to-day work activities. It follows an “Animal Farm” approach so common in today’s political world, “All workers are equal; it’s just that some workers are more equal than others.”

Yet, with all its faults, its sponsors and proponents at least had the courage to bring it before the elected body of legislators for a vote. That is something that, at least as far as I can tell, wasn’t tried in Kentucky, California, Missouri, and North Dakota. How will insurers write coverage if the rules can be changed by the governor? The coronavirus pandemic has and will continue to have powerful and far-reaching consequences for the workers’ compensation world and the vast world around it.