Uber & Zika – Two words to watch on employee injuries

Mosquito_Tasmania_cropThe two biggest questions when it comes to occupational medicine and workers comp are:

  1.  Who is covered?
  2. What are they covered for?

Right now those questions can be boiled down to two words, Zika and Uber.

Let’s look at what is covered  first.  There is a lot of concern right now over the mosquito-borne Zika virus.  It not only represents a potential health problem for workers, but may also be a devastating threat to their unborn children.  In Miami Beach, at least two police officers have contracted Zika and they believe it happened while they were on patrol.  Both cops have applied for workers comp and their union is backing them up.  In both cases, the request was denied.  Recently the city weighed in with a letter to the police union saying officers can only get workers comp if they can prove they contracted Zika on the job and identify the actual mosquito that gave it to them: “He/she must show that the exposure/bite took place while on duty and identify the specific infected mosquito.”

Needless to say, the two sides are pretty far apart on this one.  But the implications are huge.  Zika is expected to potentially expand its range throughout the Southern U.S. and the workforce that could be exposed is potentially everyone who works outside.  That’s a lot of people and a lot of exposure.   But why stop with Zika?  We have any number of mosquito, tick and other critter-born viruses.

The question of who is covered involves Uber, the on-demand ride service that turned the taxi industry upside-down by allowing people who need a ride to use a smartphone to contact drivers.  The drivers own their own vehicles and Uber does not consider them to be employees in any traditional sense of the word.   However, labor groups and some employees are challenging that claim. Much of the debate centers on whether drivers should receive workers comp.  One pro-labor organization, the National Employment Law Project, points out in a position paper that most taxi drivers, even the ones who lease their cabs, are considered employees for the purposes of workers comp.   The group argues that these are potentially risky jobs, Uber drivers fall into the same position and therefore, “on-demand companies, especially those operating in highly dangerous sectors, should be required to provide workers’ compensation to those who work for them.”

That is not by any means a legal opinion and Uber is fighting hard to maintain its model.   But it does point out that Uber and competitors like Lyft have become a battleground over the changing relationship between companies and employees.   Uber calls them independent contractors.  The Law Project calls them on-demand workers.  Other terms that crop up are temporary workers and the gig economy.  Whatever it is called, the increase in the number of workers who receive income from companies, but are not employees is raising questions over the 100-year old worker’s compensation system.  Sometimes referred to as the “Grand Bargain,” the trade-off was that workers gave up the right to sue for injuries in civil court in exchange for legal guarantees.  As the Uber model shows, both companies and labor question whether their is a Grand Bargain after all.

Zika and Uber both show that challenges to the fundamentals of workers comp are time-consuming and extremely messy.   Workers comp tends to be a lengthy process and much of it centers on individual cases.  In Miami Beach, the two officers were each handled by different comp requests.  One was rejected and the other was initially approved, then rejected.   With Uber different states have handled them differently and they have even been handled differently within the same states.   Workers comp also is prone to “venue shopping,” picking and choosing states which may be more or less prone to accept a claim.

Answers on the issues raised by Zika and Uber will take a while to resolve, but the stakes are pretty high on both of them.

Leave a Reply