In the remains of the Manhattan Project, the fight over workers’ compensation and intergovernmental immunity


Case preview

On Monday, a court will consider whether the federal government must pay workers’ compensation to certain employees at the Hanford nuclear power plant in Washington state. (Tobin via Wikimedia Commons)

Under the established constitution, states generally cannot tax or regulate the property or operations of the federal government. This principle is known as intergovernmental immunity.Congress, however, may waive that federal immunity, and the scope of the doctrine was the main issue in Monday’s oral debate United States v Washington.

A sort of federal law of 1936 Waiver of federal immunity from state workers’ compensation laws on federal lands and projects. Congress passed the law after the Supreme Court ruled that states could not apply workers’ compensation statutes to federal facilities. The 1936 waiver empowered the State Workers’ Compensation Authority to “apply [state workers’ compensation laws] All lands and houses in the State owned or held by the Federal Government by deed or conveyance, and all projects, buildings, buildings, improvements and properties in the State belonging to the Government, in the same manner and as such houses are subject to such land, To the same extent as the exclusive jurisdiction of the country in which the house, project, building, construction, improvement or property is located. “

The original purpose of expanding state workers’ compensation to federal lands and programs was to ensure that non-federal workers participating in “federal jobs” would receive some form of workers’ compensation. Without this expanded coverage, workers could lose this protection and be forced to rely on lengthy and costly tort cases to obtain remedies for work-related injuries or illnesses.

Workers’ compensation laws and regulations provide workers with regular cash benefits and medical expenses for illnesses and injuries suffered by workers while on the job. Sickness has historically been difficult to cover in workers’ compensation due to causation requirements. Many illnesses may have both work and nonwork causes. United States v Washington This situation is implicitly considered.

At issue in the case is whether the federal government must continue to pay workers’ compensation claims for certain workers employed by federal private contractors. These workers are at high risk of contracting diseases from workplace exposure to radioactivity and toxins in the Hanford Nuclear Reserve, a federally-controlled piece of land on the Columbia River in Washington state.

Hanford Conservation Area is a large 586-square-mile facility with a rich history. The site, built in 1943 as part of the Manhattan Project, contained the world’s first full-scale plutonium production reactor. The plutonium produced at the site was used in the atomic bomb that was detonated over Nagasaki. The reservation, which also played a role in the Cold War, was decommissioned in 1989 and is currently being cleaned and restored, much of it by contract workers at the center of the case. This is clearly a super dangerous workplace. The cleanup at Hanford is expected to take decades, and many workers could become seriously ill during the cleanup. Some people will die. Their workers’ compensation claims can be very expensive, which increases the risk of the case.

The federal government reimbursed some of its Hanford contractors, paid workers’ claims without objection, until Washington amended its workers’ compensation law in 2018 to make it easier than ever to prove Hanford-related claims Disease causation under previous law.

The United States argues that the change in Washington law would be costly to the federal government. Washington claims the argument is exaggerated. Occupational diseases of the type considered may take many years to manifest. Therefore, the cost is not known at this time, but it is likely to be substantial. Of course, someone will eventually pay, and the underlying policy question is whether the cost of the disease should fall on workers or elsewhere.

No one disputes that toxic and nuclear materials often cause severe illness and death. However, in certain circumstances it may be very difficult to prove that a particular worker has developed a particular disease as a result of a particular exposure to a toxin or radioactive material. This problem is exacerbated if all possible safety protocols are not implemented and careful monitoring of hazard exposure is not undertaken and continued. Only through this control and monitoring can specific exposures be identified and their causes determined. Washington argues that cleanup contractors often fail to comply with such safety protocols and monitoring. So, the state argues, such lapses are a roadblock to workers’ compensation benefits. In short, workers are immediately at undue risk of disease and cannot justify this due to inadequate monitoring.

The issue of proof of causation is not new to workers’ compensation. In the 19th century, at the beginning of European workers’ compensation, industrial illness was often difficult to prove. Where general causation is possible and intuitive – for example, anthrax in a tanner may have been caused by occupational inhalation of biological agents – earlier UK regulations “presumed” causation in individual cases. Unless employers can “rebut” or rebut “presumptions,” regulators will force workers to be liable for compensation.

The theory of imposing liability is that the cost of industrial disease is best borne by the industry that produces it. Although the principle has been followed unevenly in recent decades, several states, including Washington, have reinvigorated it in specialized contexts over the past few years. For example, for about the past five years, firefighters in most states have been protected by the legal presumption that cancers commonly diagnosed in their ranks may have been caused by their work. More recently, during the start of the coronavirus pandemic, about 20 states established the hypothesis that COVID-19 infections among essential workers could be caused by work.

In these special cases, as in the old statute, the employer has the opportunity to rebut the presumption of causation. But the rebuttal is problematic. Employers have as much difficulty proving that certain illnesses were not caused by work, just as their workers have to prove they were. The inevitable result is shifting some of the cost of workplace illnesses from workers to employers. How much is hard to say, and that uncertainty determines the potential controversy of this case.

In its 2018 law, Washington presumption of causation Covers Hanford cleanup workers. The presumption was established on the basis that the contractors who allegedly worked in Hanford failed to adequately protect and monitor the safety of their workers. Washington claimed that the omissions skewed the scale of proving causation for the worker’s illness, making it unacceptably less likely to adequately provide workers’ compensation coverage. The presumption is considered a correction.

The United States does not challenge Washington’s power to make presumptions of illness under state law. It also agreed that Congress has generally waived intergovernmental immunity from state workers’ compensation liability. It argues, however, that Congress has merely waived immunity from liability to workers’ compensation laws in the same manner and to the same extent as the premises fall within the state’s exclusive jurisdiction. The U.S. argues that this only allows the application of workers’ compensation laws of general applicability and prohibits the application of “state” workers’ compensation laws that apply specifically to the federal government and those with whom it does business (in this case, Hanford Contractors ).

The Washington law known as HB 1723 states in the relevant part: “With respect to DOE Hanford site workers as defined in this section, under this title, there is a preliminary presumption that the diseases and conditions listed in subsection (3) of this section exist. Occupational Disease in Section.” The United States argues that the law is not a law of general application and that it ostensibly discriminates against the federal government. Furthermore, it emphasizes that the waiver of federal immunity is very narrowly understood. (The parties have clashed throughout the case over the breadth of intergovernmental immunity waived by other Congresses).

Washington countered that prior cases have established that states can claim almost any form of workers’ compensation against the federal government in waiver of workers’ compensation immunity.exist Goodyear Atomics v. MillerFor example, the court upheld an Ohio law that imposed safety penalties on employers in addition to providing workers’ compensation. Although the law differs in some respects from typical workers’ compensation laws, the court concluded that the law qualifies for congressional immunity.

Washington also argued that the presumption that singled out Hanford workers was a result of the ultra-hazardous nature of the work performed on the reservation. In other words, the presumption is for the extremely dangerous job itself, not for the federal government. But there is something wrong with this argument. That presumption applies to some federal contract workers in less hazardous jobs, not some non-federal contractors who do arguably ultra-hazardous jobs on reservations.

To address these inconsistencies, in March, the Washington legislature revised that assumption to apply to all workers at all radioactive waste sites in the state.Democratic Gov. Jay Inslee signed the new bill into law on March 11, Washington now argues United States v Washington The case is moot. The federal government, in turn, argued that Washington did not appear moot, primarily because the case was adjudicated in the interval between the passage of the original presumption and its amendment, but also because the court was “interested in preventing litigants from attempting to manipulate the court” On the one hand, the case will determine the exact contours of the intergovernmental immunity for federal workers’ compensation immunity, hopefully without harming workers with serious industrial illnesses.



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