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Workplace Benefits for Fishermen Under the “New Normal” of Covid-19

July 23, 2020

We’ve all heard the term “new normal” over the course of the pandemic. We all know that this term is being used as a catch all to describe all of the changes that we all will need to embrace and deal with as together we fight the Covid-19 virus. As the moniker implies, there will be new standards and norms going forward that we have never encountered that will soon become commonplace. Changes in the law are not immune and in fact will likely take place relatively quickly as the legal system seeks to adapt to the realities of the Covid-19 pandemic.

Workplace benefits is one area where the law is being forced to confront its “new normal”. One battle line being drawn on this issue is that companies, who might end up being backed by Republican sponsored litigation, are essentially seeking immunity from having to pay benefits or face lawsuits alleging that a worker was injured and had become disabled, or worse yet died, as a result of contacting Covid-19 in the workplace. Workers on the other hand would like to recover benefits and/or damages of the contract Covid-19 in the workplace just as they would have had they contracted some other illness or injury in the workplace before Covid-19. The attached article talks about this issue that this is raising and highlights that it may be a matter of proof.

As the definition of “new normal’ starts to take place over the following months, we expect that the government, both at the state and federal level, will being to pass laws and regulations defining standards for workplace recovery, in particular, what a worker will be required to prove, either in court or in an administrative context like worker’s compensation in order to establish that they contracted Covid-19 in the workplace. Keep an eye on this space and others like it to stay informed as the definition of “new normal” in this context is developed. This issue is particularly acute for commercial fishermen clientele and there may be some hope for fishermen who develop Covid-19. This is because seaman, including fishermen, are covered by the Jones Act and the common law doctrine of Maintenance and Cure. Under the Jones Act, a seaman/fisherman is entitled to recover damages in the event they can prove that their vessel owner/employer negligently failed to provide them a safe workplace and that any condition or injury he suffered – including Covid-19 – was caused in whole or in part by the vessel owner/employer’s negligence. In other words, so long the vessel owner/employer’s negligence or unsafe workplace played any role, no matter how slight, in causing a fisherman/seaman to develop Covid-19, they will be liable under the Jones Act. Maintenance and Cure should be even easier to recover because a fisherman/seaman only need to prove that the illness, injury or condition they are suffering from occurred while they were on the vessel or as a result of working conditions.

How the Jones Act and Maintenance & Cure standards are affected by upcoming regulations, legislation and case law remains to be seen. For instance, OSHA has just this week issued a directive purporting to provide guidance on the medical causation standard when it comes to an employer’s responsibility for reporting Covid-19 in the workplace. We will explore this topic more fully next week in this space.

If you, your family and/or loved ones, have developed Covid-19 and think it may be work related or due to the negligence of your employer someone else, please do not hesitate to contact us.  We already represent several clients who have either contracted and/or died from Covid-19 in the fishing industry.