Friend and colleague Peter Rousmaniere penned a terrific piece in workerscompensation.com on how and why Harvey may expose huge holes in the workers’ compensation “system” in Texas.
here it is in its entirety- thanks Peter and WorkersCompensation.com!
Harvey brought 50 inches of rain and a thick dossier of irony to the workers’ compensation system in Texas. This natural disaster, like others have in the past, will challenge an economic safety net like workers’ comp to deliver assured and complete response.
Special factors at play in Texas may trigger a combination of grief, schadenfreude, and uncertainty.
Already hundreds if not thousands of employers in the state are gearing up for a surge of business in cleanup and repair. Can employers and workers depend on workers’ comp? Well, it depends. The catastrophe struck in the state with the greatest contradictions in how the workers’ comp system is supposed to work.
Are the cleanup and repair workers actually eligible for workers’ comp coverage?
In any other state, in any other year, the simple answer is yes. But in Texas, employers do not need to participate in the workers’ comp system. The opt-out program (technically, its non-subscriber program) covers very many small employers. How they respond to work injuries may be anyone’s guess, including themselves, since being outside workers’ comp means the employer is accountable to no one. Though they are supposed to file an intent to opt-out, the state is lax in enforcing that. The employer can drop off an injured worker at a community hospital and not pay a cent for the worker’s medical care. It need not pay a dime for wage replacement.
The employer can, to be sure, be sued for negligence. But what lawyer is going on a fool’s errand to sue for negligence a dry wall contractor with somewhere between 2 and 10 employees depending on the jobs at hand?
Further, the employer can legally threaten to fire the injured worker, or his co-workers, if anyone threatens to file a suit or so much as complain about having to make up his or her own work injury benefits. Intimidation is legal in opt-out.
Typically, in other states, when workers try to cover their work injury medical bills with their health insurance plan, the plan sends a team to the workers’ comp insurer to recover their medical spending. But Texas in this regard is not typical. Opt-out employers don’t have insurers.
And, Texas has the largest percentage of the population of all 50 states that do not have health insurance. (When almost every other state’s uninsured population plummeted due to Obamacare, Texas’ did not.) A lot of the cost is likely paid by the worker or out of hospital free care.
What about the undocumented workforce?
“Where are those undocumented workers now that we need them?” the construction industry may be asking. It has, according to press reports, grumbled months ago about Trump’s immigration enforcement. A 2013 study by the Workers Defense Project estimated that half of the construction workforce in the state is undocumented. These workers concentrate in low skilled assignments — such as hauling destroyed carpets from flooded homes, clearing out debris and carrying in building materials. In other words, the work created by Harvey.
We can disagree on the wisdom of stepped-up immigration enforcement and on the best long term solutions for the country’s eight million undocumented workers. But consider the facts on the ground. As Voltaire was reputed to have quipped, at 5 PM we are all economists.
Here is the problem: If Homeland Security continues to root out undocumented persons, how are the contractors who depend on them going to hire them? And if hired, in today’s climate of enforcement would an undocumented worker of employer covered by workers’ compensation rationally ever want to file a workers’ compensation claim out of fear of being discovered and deported?
Major disasters find a way to exacerbate unresolved stresses that preceded — in land use, economic relations, public policy. This was the case in the Chicago fire of 1871, the Triangle Shirtwaist fire of 1911, Katrina, and now with Harvey. Is the state of work injury benefits in Texas a model or a monster?
You can reach Peter at pfr@rousmaniere.com
Joe, if you and Peter can’t see clearly how Texans take care of each other in this crisis, I don’t know that there is hope for you. Please leave the politics out of this – at least just for a few months while we start recovering – please? We’re HoustonStrong and TexasStrong and will have plenty of labor and will take care of anyone that gets injured – including the hundreds of thousands of volunteers that are helping out that aren’t concerned about politics, skin color, race, ietc.. but instead are showing compassion for their fellow man. Again, our people here are hurting and will be struggling for many months/years as we recover and we need positive support, not fearmongering and politics right now.
Afterwards, if there are issues that you/Peter want to raise and exploit, that’s fair game. Thanks for your understanding.
John – I strongly object to your assertion that somehow Peter and/or I are using this to play politics or fear-mongering.
Far from it.
Protecting workers from the physical and financial consequences of occupational injuries and illnesses is something Peter and I have long and consistently advocated for. This isn’t political, it’s basic human decency.
The time to warn about impending disasters is not after they’ve hit our shores, it’s before they reach hurricane status.
Peter’s dead on about the lack of protections for workers not covered by workers’ compensation in Texas. His words remind us of our obligation to ensure those workers are protected.
It’s nice to talk about how all will be taken care of, but the facts and history don’t support that belief.
We don’t appreciate your timing here. Feels very liberal media’ish. Maybe post this a month from now, but your timing is very poor, especially from where you are geographically, and from one who always veers into one side of politics, which is obviously not appreciated here. Either come down here and help or shut up. Seems like you were taught to: “kick them while they are down, they get up faster”.
Phillip – good to hear from you again.
Couple thoughts.
1. When I took on ProPublica’s slanted reporting, I was vilified by folks from the liberal side. I suppose when I’m being accused of being too left or too right I’m just about where I need to be.
2. Neither Peter or I brought politics into this – you and John did. Doing right by workers isn’t the province of either or any political persuasion; I have no idea why you think this is a “liberal” media thing.
3. As one who lived thru many hurricanes in my childhood overseas and Sandy and Irene more recently, I completely sympathize with everyone affected. I’ve been there many times.
4. Alas, I’m fully engaged trying to help fix Onondaga County. For your edification, this is a very conservative area politically, most elected officials are in the Conservative and/or Republican parties, and we are heavy in agriculture, struggling mightily with a rust-belt-based economy, and desperate for answers to the opioid/heroin crises.
Finally, I’d suggest it is unfair to make assumptions based on extremely limited knowledge. It does you no credit and is often flat out wrong.
Excellent article. My compliments.