Supreme Court Review of Washington Comp Law Regarding DOE Site Could Sting the Taxpayer
In 2018 Washington State passed HB 1723, which provides a rebuttable presumption that any present, past, or future worker at the Hanford Nuclear site who suffers “one of hundreds of covered illnesses,” may be entitled to workers' compensation benefits. They do not need to show that the worksite was the reason for their illness. It is automatically presumed to be related.
Hanford was a nuclear weapons production facility that is known to be highly contaminated. The law covers such illnesses as respiratory disease, neurological disease, and various types of cancers. There must be “clear and convincing” evidence produced of hereditary or behavioral issues presented in order to deny any claim.
The Federal government has sued the state, saying that the coverage is too broad and that private contractors at the site subject to state workers' compensation laws could end up costing the government hundreds of millions of dollars in claims that are not necessarily causally related. The state for their part says that their citizens have been unnecessarily exposed to toxic conditions at the site, and the law is in place to protect workers and their families. The US Supreme Court has agreed to hear the case, and the outcome could have far-reaching consequences.
After all, Hanford isn't the only federal site known to be toxic and potentially hazardous.
So far, the courts have backed the state, which had favorable decisions in both the federal district court in Richland, WA., and the federal appeals court in San Francisco.
According to Engineering News-Record, the “DOE is the ‘statutory employer' for the employees of certain Hanford contractors under a memorandum of understanding with six current prime contractors and seven subcontractors, which employ the majority of Hanford's 10,000 employees, the complaint said. The document also covers the employees of 61 contractors and subcontractors that previously worked for the federal government at Hanford.”
The federal government's contention is that the Washington law is unconstitutional as it imposes costs on DOE and its contractors not imposed on other employees in the state. They also argue that it forces them to cover certain conditions “commonly occurring in the general population.”
This column has not been a fan of automatic presumption laws in workers' compensation. They have become most fashionable of late in regards to first responders, and to a more limited degree, front-line workers with Covid. That does not mean, however, that we believe workers should be left unprotected. In situations such as the one at Hanford, when workers are sent into a toxic stew of nuclear and chemical waste, protections should be available.
Leveraging the old adage, “An ounce of prevention is worth a pound of cure,” it might be more economically feasible to improve monitoring of these worksites so that some of the illnesses attributed to them might be avoided in the first place. The state, in their arguments before the court, has asserted that “private contractors operating at Hanford have routinely failed to provide employees with protective equipment and to monitor their exposures to toxic substances.” Effective monitoring and enforcement could correct that issue, and likely wouldn't cost the ‘hundreds of millions of dollars” the federal government alleges is at risk.
Of course, that monitoring would have to be paid for, and that could certainly be a sticking point. And avoiding situations in the first place has never been our strong suit.
Nonetheless, if the Supreme Court upholds the lower courts' decisions, the federal government and contractors at other contaminated federal worksites may be on notice that their costs are about to significantly rise. Other states could easily model legislation after Washington's example. And once those presumptions are in place, no amount of personal protective measures will prevent some occupational illness claims from occurring.
And just like those associated with First Responders, the US taxpayer will be left to pick up the tab.
Robert Wilson is President & CEO of WorkersCompensation.com, and "From Bob's Cluttered Desk" comes his (often incoherent) thoughts, ramblings, observations and rants - often on workers' comp or employment issues, but occasionally not.
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