New Feature: Opinion Mondays — In the COVID-19 Medical Crisis, Who Is on the Front Line?
Last Wednesday (March 25), North Dakota Governor Doug Burgum signed Executive Order 2020-12 that, as of March 13, 2020, 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 contract the coronavirus while going about their duties. The governor has apparently determined that some North Dakota workers — e.g., juvenile court officers — are effectively on the “front line” of the COVID-19 battle, while others — e.g., bank tellers and grocery clerks — are not. I’m left with the feeling that this is just one more instance in which a governmental official or agency has engaged in picking winners and losers. Let me explain.
Changing Compensability Rules by Executive Fiat?
Initially, one might wonder how a state governor, with his or her pen, can alter the state’s rules regarding the compensability of workers’ compensation claims. After all, the state’s Workers’ Compensation Act is already in place. It already contains a set of checks and balances regarding all claims filed within the state. North Dakota is a bit unusual in its insurance coverage. The Peace Garden State has a state fund — North Dakota Workforce Safety & Insurance — that provides all coverage for employee’s within the state. So, the governor isn’t favoring those insurers who do not write coverage for first responders and health care workers. Nevertheless, the WSI isn’t funded with tax dollars; rather, it is employer-funded, so there is certainly an argument here that the governor has altered the rights of employers without due process.
How Hard Has North Dakota Been Hit by the Coronavirus?
So far, at least, North Dakota has escaped much of the coronavirus onslaught. According to official statistics, as of 4:00 p.m., yesterday (March 29, 2020), North Dakota had tested 3724 persons within the state. Of that number, only 98 had tested positive. 18 had been hospitalized. One resident of North Dakota has succumbed to the virus, and 19 have recovered. As one might imaging, with the state’s relatively sparse population, “social distancing” has been going on for years.
Executive Order Favors Some
As noted above, the executive order favors “first responders, health care workers and all occupations included under N.D. C.C. § 65-01-02(11)(b)(1). A quick look at that statutory provision reveals that the order favors any:
firefighter, peace officer, correctional officer, court officer, law enforcement officer, emergency medical technician, or an individual trained and authorized by law or rule to render emergency medical assistance or treatment that is exposed to a bloodborne pathogen ….
From my reading of various North Dakota statutes, juvenile court officers and court stenographers would apparently be covered by Governor Burgum’s executive order.
Why Do We Need Special Rules for Some?
As I have argued elsewhere, first responders and health care workers should find their coronavirus claims relatively easy to establish, with or without this special order. They can, of course, point to their duties and show that it is much more likely than not that their COVID-19 exposure came through the work environment. Favoring a court reporter over a grocery store clerk is another thing. One would think that our federal, state, and local governments owe the same duty of care and protection to all workers.
As a parting note, before you scream that I must have something against first responders and health care providers, know that I have two friends who are retired police officers, one of our sons is a primary care physician (a pediatrician), and one of our daughters-in-law is not only a nurse, but an ER nurse. I pray for them daily in these uncertain times. But I pray as well for the friend I’ve made — he’s about my age — who works at Fresh Market.