In recent weeks, a number of New York’s elected officials have called for the creation of some form of national fund, modeled after the 9/11 Victim Compensation Fund, to help those who were designated as “essential workers” and have fallen ill or died from the virus. While the idea is well-intentioned, it overlooks the fact that New York already has a system in place that can — and should — be providing benefits: the workers’ compensation law.
The workers’ compensation law was created in 1914 to protect workers and their families from the economic and medical consequences of work-related injury and illness. For over 100 years, the system has provided wage-replacement benefits (now up to a maximum of $934.11 per week) and medical treatment for injured workers. Those who are permanently disabled may receive benefits for many years, and sometimes for life. If a worker is killed on the job or dies as the result of a work-related injury, death benefits are payable to the surviving spouse (potentially for life), children and other dependents.
As a result of the COVID-19 pandemic, New Yorkers were told to stay home to protect themselves and others from catching or spreading the virus-related illness. But some were told that they must report to work because their employers were “essential businesses.” These “essential employees” — grocery-store workers, building employees, transit workers, healthcare workers, police, firefighters and more — were put in harm’s way as a result of their work. Thousands have fallen ill, many have died, and the outbreak is far from over.
This is precisely the situation that the workers’ compensation law was intended to cover. Although COVID-19 illness is not limited to essential workers, there is no question that these workers are at far greater risk of contracting the virus by continuing to provide the services society depends on.
As the legendary Judge Benjamin Cardozo wrote in 1921: “The tourist on his first voyage may go down with the ship if evil winds arise. None the less, in measuring his risk, we do not class him with the sailor for whom the sea becomes a home.” Our essential and health-care workers are sailors on the sea of COVID-19, and New York’s workers’ compensation system is supposed to be there for them when it is needed.
Not only is workers’ compensation the appropriate remedy for this situation, it is a far superior remedy to the proposed federal fund for at least four reasons.