At the 2011 Annual Longshore Conference, District Director David Duhon mentioned the proactive steps that the Office of Workers Compensation Programs (“OWCP”) was taking in response to the earthquake and tsunami that ravaged Japan on March 11, 2011. In a news release dated March 24, 2011, the OWCP discussed DBA coverage, waivers and radiation exposure. The news release makes clear that the DBA covers workers employed to perform work on any contracts with any United States government agency, if the contract is performed outside the United States. Coverage extends to United States citizens and residents, host country nationals, and third country nationals.
DBA insurance is required unless a waiver has been granted to a particular government agency. Only the Secretary of Labor can provide a DBA waiver, and it is within the Secretary’s discretion to determine whether application of the DBA will be waived for any contract, work location, or class of employees. Even if a waiver is granted, however, it does not exempt from DBA coverage citizens of the United States, legal residents of the United States, or employees hired in the United States. Further, the waiver would not apply to local or foreign nationals working under a United States contract when there is no local workers’ compensation law. For the Japan disaster, the Secretary has granted the Department of Defense and the Department of State a DBA waiver, but that wavier does not extend to any other United States government agencies. As a practical matter, it is important to note that waivers are an extremely rare remedy under the law.
Finally, radiation exposure is covered under the DBA because the DBA covers all injuries, occupational diseases, or infections that arise out of or result from employment exposures. A radiation exposure injury or illness is no different, even if the medical condition is not diagnosed for many years after the employment.
A copy of the OWCP News Release dated March 24, 2011, can be found here.
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)