Let’s make workers’ comp work

FOR MORE THAN 100 years, injured workers in Massachusetts have been parties to the “grand bargain” known as workers’ compensation. On the one hand, employers bear responsibility for providing insurance to cover medical treatment, rehabilitation, partial payment of lost wages, and death benefits for workers injured or killed on the job. On the other, workers forfeit their right to sue their employer. But the “grand bargain” hasn’t worked out so well for a whole lot of injured workers.

Studies have shown that only a fraction of injured workers ever receives any benefits through workers’ compensation, including findings that fewer than 40 percent of eligible workers ever apply for these benefits.

Why would this happen?

For many injured workers, fear of retaliation and concerns about the stigma of being “on comp” mean that they never file claims. And other workers do in fact face retaliation after filing, from harassment to hours reductions to being shown the door – feeding the fears of their co-workers who become less likely to seek benefits when they are injured.

For low wage-earners, many of them immigrants, access to workers’ comp is too often blocked by unscrupulous employers intent on stopping workers from reporting injuries or making claims. Those employers may have failed to obtain the required insurance, or are intent on avoiding premium increases and surcharges. And many are operating in the shadows, dodging worker safety and wage requirements too.

These employers don’t want their shady practices exposed. So they demand that employees tell authorities or doctors that the injury occurred at home and not at work. Or they intimidate workers into not filing a comp claim, via threats of physical violence, or termination, or a call to ICE. These methods effectively deter workers, immigrant or not, from obtaining the life-critical benefits and medical care they’re entitled to under the law.

But the end result is the same: Workers eligible for benefits are shut out of the system. Workers, their families, and taxpayer-supported safety net programs are left holding the bag, and law-abiding businesses suffer a competitive disadvantage.

Workers’ rights groups and workers’ comp lawyers have many stories to tell of workers who should have applied for and received benefits, but did not – or who faced retaliation at work after seeking benefits to which they were entitled. Many workers stepped forward to testify at a Beacon Hill hearing last summer on S.2401/H.4174, An Act Protecting Injured Workers. Reported favorably out of the legislature’s Joint Committee on Labor and Workforce Development, this bill now awaits further action.

This bill provides broad protections for injured workers’ right to seek medical care and benefits through workers’ compensation, and creates better procedures when workers seek to vindicate those rights. For example, it clarifies that illegal retaliation includes employers’ efforts to stop workers from going to the hospital or seeking medical care after a workplace injury. It makes clear that when an employer has paid at sub-minimum levels, awards of comp benefits will be based on the minimum wage required by law.

If an employer chooses the path of retaliation, the proposed legislation allows for more appropriate and effective make-whole relief for harm done to the worker than is available under the current law. The bill also includes a much-needed state administrative process that allows workers to file retaliation complaints with the Massachusetts Commission Against Discrimination, the state agency that has the expertise and investigative procedures to handle these types of complaints.

Many Massachusetts employers take care to treat their workers as the law requires. Regrettably, others chose a different path. When workers don’t claim their rights because they fear retribution from low-road employers – or when the hurdles for asserting their rights are just too high and the sanctions too feeble – the law becomes toothless, and the “grand bargain” becomes a hoax.

Which means that the existing law needs to be fixed.

S.2401/H.4174 will do much to repair what’s broken, by sending this unmistakable message: “We, the Commonwealth of Massachusetts, take workers’ rights to compensation for injuries on the job seriously.  If, as an employer, you fail to do likewise, you do so at your peril.”

Let’s send that message by passing this bill.

Emily Spieler is the Edwin W. Hadley Professor of Law at Northeastern University. Michael Felsen is the former regional solicitor in the US Department of Labor.