Companies providing services on U.S. military bases overseas are probably familiar with the Defense Base Act (DBA), a comprehensive federal workers’ compensation scheme providing medical and income benefits to injured workers. However, employers are often surprised by what activities qualify for compensation when employees suffer injuries during the course and scope of employment. This has historically been governed by the landmark decision O’Leary v. Brown-Pacific-Maxon, where the U.S. Supreme Court held an injury could be compensable if the “obligations or conditions of employment create the zone of special danger out of which the injury arose.”1 This includes injuries sustained off the clock or recreationally if the employee’s activities create a foreseeable risk.
Since the time of the O’Leary decision, the zone of special danger doctrine has been tested under many off-the-clock circumstances including a bar bet, a cosmetic facial peel, and an injury due to a flying bar of soap.2 With the increasing use of local nationals on U.S. military bases in the past two decades, the question of whether an injury has been sustained due to the “obligations or conditions of employment” has become increasingly complex.3 Does the zone of special danger apply if a local national sustains an off-the-clock, off-site injury, even if they live in the same region before and during their employment? One recent decision from the Ninth Circuit suggests, under some circumstances, this answer could be “yes.”
For decades, the U.S. military has conducted operations on the Marshall Islands — 2,400 miles southwest of Honolulu. Operations are largely serviced by government contractors, who in turn hire local nationals. Edwin Jetnil was a Marshallese citizen who, in 2009, worked as a painter for the U.S.-based military contractor, Chugach Management Services.
Jetnil mostly worked at the large island of Kwajalein Atoll but occasionally worked at Gagan Island — a small, deserted island that is sometimes serviced by Chugach’s employees. Gagan was only accessible by boat or helicopter, and only with Chugach’s permission. On January 7, 2009, Jetnil and a few Marshallese coworkers sailed a boat to Gagan for a four-day assignment. On the third day of his assignment, after work hours, Jetnil went reef fishing — a traditional practice among the Marshallese that requires throwing nets to catch fish in coral reefs. While standing on the reef, Jetnil slipped and cut his right foot between his fourth and fifth toes. After delaying proper care for more than two weeks, doctors at Kwajalein Atoll were forced to amputate Jetnil’s right leg.
A week after the amputation, Jetnil completed a first report of injury with the DOL’s Office of Workers’ Compensation Programs (OWCP). Chugach denied the claim, filing a “Notice of Controversion of Right to Compensation” with the OWCP, stating it “respectfully controvert[s] [Jetnil's] claim [for disability benefits,] as the injury leading to claimant's present status did not arise within the scope and the course of his employment,” so “the claim is not compensable under the DBA.”
Jetnil’s claim for benefits ultimately reached an administrative law judge (ALJ). Relying on O’Leary, the ALJ found the conditions of Jetnil’s employment placed him in the zone of special danger.4 The judge noted Gagan was uninhabited and unreachable except with Chugach’s permission, and that fishing was a reasonable activity under the circumstances due to limited provisions on the island. The judge also noted the increased risk of working on Gagan due to its remote location.
The Benefits Review Board affirmed the decision on administrative appeal, leading to an appeal to the Ninth Circuit. The Ninth Circuit affirmed the decision and held for the first time that the zone of special danger may apply to local nationals.5 The Ninth Circuit pointed out that Congress temporarily excluded local nationals from DBA coverage in 1953, but reinstated coverage in 1958. According to the court, because Congress was aware of the zone of special danger doctrine at the time it reinstated coverage for local nationals, Congress implicitly intended for them to benefit.
However, the Ninth Circuit stopped short of holding that the zone of special danger applies to local nationals working near their homes under regular circumstances. The court specifically reasoned that courts justify the zone of special danger in part based on the job’s “remote, uninhabited, or generally inconvenient” locale.
Implications for Employers
In Chugach, the Ninth Circuit made clear, “the application of the zone of special danger doctrine will necessarily differ for local nationals employed in their home country than for an employee sent from his or her home country to work abroad.” Employers are left to wonder — what are the limits of the zone of danger doctrine when applied to local nationals living in inherently remote, uninhabited, and inconvenient locales?
The Ninth Circuit gave us a clue, explaining, “if Jetnil had been hurt fishing on a day off on his home island, rather than between shifts during a four-day overnight work assignment on an uninhabited island with restricted access, [Petitioners] would have a strong argument against application of the zone of special danger doctrine.” But what if Jetnil lived near the uninhabited island and was injured between shifts while driving to and back from home?
This hypothetical scenario is easily found in Afghanistan, where many Afghan citizens work for U.S. contractors at remote military bases. Workers get to work by boarding a bus, riding a bike, or some other mode of transportation. In Afghanistan, it is customary for local nationals to return home during lunch breaks, and return back to the base to finish their work day. Depending on the locale, some nationals might stop at a local mosque to complete the customary afternoon prayer either before or after their lunch break. Assuming a war hazard is not at play, are local nationals covered by the zone of danger for every injury suffered to and from home during their lunch breaks?6
The Ninth Circuit hinted that injuries suffered as a result of a common cultural practice may subject employers to liability under the zone of special danger doctrine. In Jetnil’s case, the Ninth Circuit noted, “[r]eef fishing, which involves throwing nets to catch fish in coral reefs, is a common cultural practice of the Marshallese.” And, as noted by the court, the zone of special danger may not have applied if Jetnil had hurt himself while fishing at home. The court further reasoned, “employment takes the employees to remote, uninhabited, or generally inconvenient places,” and these concerns “can just as easily apply to local nationals employed in their homeland as it can to employees sent abroad from their home country.” In places like Afghanistan, however, some areas are inherently inconvenient, with no roads or potable water, just to name a few.
As the Afghan example shows, the Ninth Circuit did not resolve how courts should rule as local nationals travel between inhabited and uninhabited locales, engage in activities between work shifts, and participate in various cultural (or religious) practices. Factor in the inconvenient locale, and the issue gets blurrier.
Until courts iron out these issues, employers may consider steps to reduce liability under the zone of special danger doctrine:
- Establish boundaries between work and non-work related activities during the work day while respecting local traditions and customs. For instance, mindful of local and country-specific laws, contractors operating in the Middle East may encourage local nationals to remain on base during all work hours by providing prayer rooms, lounge areas, and other facilities. This maintains some level of predictability in an otherwise unpredictable locale.
- Be aware that requiring local nationals to travel to areas with increased risks may create a zone of special danger and potential DBA liability, even if they are off the clock. Furthermore, whether activities causing injury are foreseeable and within the course and scope of employment may be based on local custom, rather than a more traditional foreseeability analysis. Note that local custom may result from a fusion of religious, ethnic, and/or tribal practices, so ensure local management is aware of each. And again, it must be emphasized that respect for local religious and cultural practices must be carefully balanced against practices employed to reduce liability under the DBA.