Protecting Worker Safety and Economic Security During the COVID-19 Reopening
The debate over the next stages of the response to the COVID-19 pandemic has often been erroneously framed as one over whether or how quickly to open up the economy. Instead, the question at hand is really about two different visions of what it means to return to work—and, eventually, an economic recovery.
The approach that the Trump administration and its allies have put forward focuses less on putting in place the conditions for a full economic recovery and more on offering the appearance of returning to economic normalcy. It mistakenly conflates lifting stay-at-home orders with the measures that would be needed to give people the confidence to fully and safely resume activity. And in lieu of putting in place the appropriate protections for workers, this approach simply stacks the deck so that workers are forced to choose between going to an unsafe workplace or forfeiting their economic security. Indeed, the administration and its allies are focusing their demands for economic stimulus legislation on policies that would further compel workers to accept unsafe working conditions in order to maintain their livelihoods.
This approach follows on the failure, to date, to put in place measures to keep safe the essential workers who have been on the job and on the front lines throughout this pandemic. From meatpacking plants to “essential” retailers, to delivery workers and transit workers, to those providing care in hospitals and nursing homes, COVID-19 has cost the lives of people who have had to continue to work throughout the pandemic—often with low pay and limited benefits—while also putting their families and communities at greater risk. Now, in their approach to reopening, the Trump administration and its allies are effectively choosing to double down on that failure to protect the most vulnerable workers, further tipping the scales against worker safety, reducing workers’ ability to receive a fair wage, and creating the risk of both a more prolonged health crisis and a deeper recession. The burden of these choices will be disproportionately felt by those who have already been among the hardest hit by the COVID-19 crisis—in particular, low-income workers and Black and Latinx workers.
Federal and state leaders, however, can take an alternative path. That path would begin with a sufficiently robust public health response, tying reopening guidelines to testing and incidence thresholds, establishing sufficient test-and-trace regimes, and making personal protective equipment widely available. It would involve establishing and enforcing workplace standards that would keep both workers and the broader public healthier, giving workers a voice in determining appropriate standards and ensuring that they have recourse when standards are not met. This approach would focus on empowering and appropriately compensating workers, creating an economic recovery that supports better-paying jobs as opposed to taking a “low-road” approach out of this crisis. Moreover, this path would not simply support those workers at greatest risk of contracting the virus at work; it would also protect the broader community from the spread of COVID-19 and put the economy on a stronger footing for everyone.
A failed reopening strategy that treats indispensable workers as disposable
In recent weeks, the Trump administration and its allies have attempted to make the argument that lifting stay-at-home orders is the same as returning the economy to health. In a town hall last month, President Donald Trump stated, “At some point, we have to open our country. And people are going to be safe. We’ve learned a lot. We’ve learned about the tremendous contagion. But we have no choice. We have to—we can’t stay closed as a country. We’re not going to have a country left.”
But the administration is intentionally conflating two different ideas: what it means to legally permit businesses that require face-to-face contact to begin operating again, and what it means to have a functioning economy. The administration and its allies are putting forward a set of policies that responds to the first without doing what is necessary to make the second truly possible. This failed approach features three key elements.
1. Lifting restrictions on business operations without putting in place sufficient protections for workers and their broader communities
The Trump administration and its allies have pushed states to lift stay-at-home orders without having the necessary measures in place to ensure that the virus is sufficiently under control. While states have taken a variety of different approaches to determine what businesses to allow to reopen and under what conditions, many have made decisions to lift restrictions without meeting testing or incidence thresholds that would dictate that it is safe to reopen, nor do these states have sufficient means of tracing the contacts of people who test positive for COVID-19.
In practice, this approach has involved many states allowing businesses that require face-to-face contact but whose operations were previously deemed as not essential to now open or resume more typical operations. These reopenings include retail, restaurants and bars, leisure and hospitality, and personal services such as barber shops and nail salons. In many cases, these are sectors that employ large numbers of low-wage—and nonunionized—workers, often disproportionately people of color and women. Notably, many workers in higher-wage occupations are continuing to telecommute to their jobs.
These reopenings have been accompanied in some states by requirements that, for example, restaurants or stores operate at limited capacity or workers and/or customers must wear masks. However, the administration has been slow in providing clear guidelines that would help ensure that operations restart in a manner consistent with public safety. When the Centers for Disease Control and Prevention (CDC) prepared detailed guidance for safely reopening restaurants, schools, and other facilities, the White House initially blocked its release, instead putting forward a road map with far less robust requirements that shifts all responsibility for reopening onto state and local leaders. Making matters worse, some state leaders anxious to follow the White House’s push to reopen businesses appear to have manipulated testing data to support their actions. At the same time, the push for reopening comes at a moment when personal protective equipment that could prevent disease spread is still not fully available, even in high-risk workplaces such as hospitals or nursing homes. While it is still too early to know the full impact of lifting stay-at-home orders, there is increasing evidence that states, such as Texas and Arizona, that reopened earlier may be seeing spikes in hospitalizations.
2. Absolving businesses of responsibility for worker safety
The absence of broader public health measures that could contain the spread of the virus has been matched with a failure to ensure that workplaces are safe. There is little question that the workplace has been a key vector for spread of the virus—whether in hospitals, nursing homes, meatpacking plants, public transportation, prisons and jails, or any other location where social distancing and other precautionary behavior either is not possible or has not been permitted by employers. Yet the administration has pulled back on enforcement that might help keep workers and the broader community healthy, and it has called for measures that would provide even greater license to force workers into unsafe environments.
The absence of workplace protections reflects both the efforts of the Trump administration to undermine worker safety before the crisis and a failure to appropriately respond once the crisis began. According to a recent National Employment Law Project (NELP) analysis, the Occupational Safety and Health Administration (OSHA) currently has the lowest number of inspectors since 1975, with just 862 inspectors in place to cover all workplaces nationwide. As NELP writes, “The dangerous decrease in the number of inspectors, which has fallen steadily since 2017, is a clear result of administration policies to suspend filling vacancies in FY 2017 and then slow-walk hiring by putting in new procedures over the last few years. It is not an accident.” This has resulted in an agency that is underprepared and underresourced to protect workers during even normal circumstances.
Yet the Trump administration has compounded these deficiencies by failing to mobilize the agency to put in place appropriate protections for workers—and pulling back even further on enforcement. While the CDC has issued voluntary guidelines for best practices in workplaces, the administration refuses to issue mandatory safety standards. It initially announced publicly that it was pulling back on inspections in areas outside health care and emergency response, leaving enforcement largely in the hands of employers. (While that restriction was formally loosened on May 19, a continued primary emphasis on those select workplaces may remain in some areas.) It is therefore unsurprising that OSHA did not issue its first virus-related citation until late May—which is especially concerning given academic research that shows that employer behavior is affected by the extent to which OSHA is publicizing violations.
Furthermore, the Trump administration intentionally shelved further development of a proposed OSHA rule that would have applied mandatory infectious disease standards to workplaces in which health care is provided, including hospitals, nursing homes, and clinics in jails and prisons. Previously, the Obama administration took key steps toward promulgating such a rule, but the Trump administration shelved those efforts in 2017, almost certainly as part of President Trump’s efforts to indiscriminately reduce regulations on businesses at the expense of workers and consumers. Even after the onset of COVID-19, the Trump administration refused to issue an emergency standard that could have repurposed OSHA’s earlier work on an infectious disease standard in order to mitigate the spread of COVID-19 and save countless workers’ and patients’ lives.
The consequences of this laissez-faire approach can be seen in a variety of industries, from retail to delivery to health care. A particularly stark example is the meatpacking industry, where already-unsafe conditions have become deadlier in plants across the country. According to a CDC study, nearly 5,000 meatpacking workers had tested positive for COVID-19 by late April; an ongoing tracker kept by the Food and Environment Reporting Network shows 24,719 confirmed cases and 86 deaths in the meatpacking industry as of June 10. Among Tyson Foods workers alone, there were more than 4,500 cases of COVID-19 and 18 deaths reported by mid-May, with more than 1,000 cases among workers employed at one plant in Waterloo, Iowa, that stayed open after local officials raised concerns about health conditions. (Tyson later temporarily closed the plant due to “worker absenteeism” and the large numbers of infections). It bears mentioning that this industry relies upon immigrant workers, who have been disproportionately affected by the pandemic in these workplaces due to the failure of employers to provide notices in multiple languages, an inability to access unemployment insurance, and fear of reporting worker safety hazards to appropriate authorities.
Yet the Trump administration’s response has been to press these workplaces to stay open without applying strong standards to protect worker safety and, in fact, potentially reducing the incentive for employers to take the measures necessary to mitigate the risk to workers. While the CDC and OSHA have issued updated guidelines for the industry, the CDC has made clear in communications with meatpacking companies that its guidelines are “discretionary and not mandated or required by CDC.” Despite a lack of enforceable safety standards, President Trump issued an executive order invoking the Defense Production Act (DPA) for the food supply chain. While the order did not actually order meat processing plans to reopen, it provided public, and potentially legal, cover for meat processing plants to resume operations without regard for the spread of infection among workers.
Indeed, when signing the meat processing executive order, President Trump told reporters that the order would “solve any liability problems,” likely the primary purpose of the mostly symbolic order. He apparently had in mind Section 707 of the DPA, which provides entities a defense against liability for actions taken pursuant to an order under the act and is directed at prioritizing contracts and allocating resources. In the few cases that have addressed Section 707, the courts have applied it only to contractual disputes. Regardless of whether it could be applied more broadly, no plant to date has been subject to any DPA order.
Senate Majority Leader Mitch McConnell (R-KY) is also looking to free employers from potential liability if they fail to take reasonable steps to protect their workers. He has stated that he will not support an additional stimulus package unless businesses are immunized from liability from coronavirus-related lawsuits. While Senate Republicans have not yet released specific details of an immunity proposal, efforts to immunize businesses would create further health risks, removing a key incentive for employers to keep workers and their families, customers, and the broader community safe. Notably, two families of meatpacking workers who died as a result of COVID-19 have already sued those workers’ former employers for failing to take appropriate precautions, although the companies have said they took appropriate safety measures.
Moreover, employers already have ample protection against liability for harm caused to workers. Workers’ compensation laws in every state limit workers’ ability to sue for workplace injury. Workers’ compensation benefits are the exclusive remedy for workers, and these benefits have been dramatically eroded by states. In addition, a large percentage of employees are now subject to forced arbitration agreements that prevent them from bringing employment-related claims in court. With any new liability shield, workers, their family members, and customers would have virtually no recourse and would not get appropriate compensation for the cost of medical care, lost time at work, or, in the worst cases, death as a result of the coronavirus.
At the same time, the nursing home industry has been lobbying for immunity from liability, even as more than 28,000 people have died in these facilities to date due to the coronavirus. Overall, more than one-third of all coronavirus-related deaths in the nation are nursing home residents or workers. The nursing home industry’s lobbying efforts have been remarkably successful, yielding new special protections in at least 20 states, even as residents of these facilities are isolated from the watchful eyes of their families who cannot visit and are at greater risk than ever before. Although this immunity is directed at claims by residents and patients, rather than the workers at these facilities, these state laws reduce the incentive of the facilities to take appropriate precautions such as ensuring adequate staffing levels and supplies of personal protective equipment, as well as robust cleaning and isolation procedures—which puts workers at greater risk as well.
The combination of regulatory inaction and a proposed liability shield reflects the misguided theory that an unregulated workplace is the best way toward a healthy economy. In other words, as long as employers cannot be held culpable for the risks workers face on the job, those risks can be ignored—or at least, deemed insufficient to justify action. But by creating the risk of further spread of the disease that requires a return to stay-at-home orders or results in enough of the workforce becoming too sick to keep up operations, as in the case of the Tyson plant described above, this approach will not result in a stronger economy—and will delay the moment when people have enough confidence to return to economic activity.
3. Forcing employees into a dangerous choice between income and safety
Even under more normal circumstances, many workers already must face an unsafe work environment due to inadequate federal enforcement of protections and a broken workers’ compensation system that provides limited recourse if they do suffer injuries or get sick on the job. Those risks are often compounded by the other inequities and barriers to accessing necessary supports facing workers of color, immigrant workers, and workers in the lowest-wage industries. The economic disruption caused by COVID-19, however, creates a particularly harsh reality for workers who are at risk of contracting the coronavirus if they go to work. With jobless rates still near historic highs, the option to leave an unsafe job to find other work may not exist, forcing workers into a terrible choice between an unsafe job and deep economic despair. This is heightened for the many individuals who are barred from accessing certain federal benefits due to their own immigration or citizenship status or that of their family members.
That reality may help explain why so few employers in essential industries have felt compelled to offer much in terms of hazard pay to workers who have taken on additional risks during the pandemic. The result is that one-quarter of essential workers face difficulties paying for basic household expenses, which is a greater percentage than the broader population at large. Workers whose jobs are clearly crucial to keeping the U.S. food supply in operation, who deliver necessary goods, and who staff hospitals—workers who have been rhetorically celebrated as “heroes”—are nonetheless facing economic hardship. Moreover, exemptions in recently enacted paid sick time and paid leave proposals mean that workers in these essential industries who are ill or who need to care for loved ones may not have the ability to do so. These glaring gaps in worker protections could cause workers to avoid seeking testing or treatment if they believe they cannot afford to be sick. These devastating choices are illustrated in the case of a Smithfield meatpacking plant in Sioux Falls, Iowa, that offered workers a $500 “responsibility bonus” if they did not miss a day of work. One worker said this made it “feel like they’re bribing us with money to come to work sick.”
Yet despite these challenges already facing essential workers, there have been efforts at both the federal and state levels to further limit the ability of workers to exit unsafe working conditions without risking deep deprivation. Several states have proclaimed that workers who are asked to return to work will be automatically ineligible for unemployment insurance, even if they have good reason to fear that their workplace is unsafe. In states such as Ohio, officials have proactively asked employers to report workers who have declined to report to work, in order to remove their unemployment benefits. These steps may be at odds with federal laws governing unemployment insurance; under one requirement in current law, for example, states cannot deny compensation for refusing to work under new or changed conditions if the “wages, hours, or other conditions … are substantially less favorable to the individual than those prevailing for similar work in the locality.” Under long-standing guidance from the Department of Labor, conditions explicitly include health and safety rules and physical conditions. Yet the Trump administration has issued guidance that fully ignores that provision of the law. Furthermore, congressional Republicans have expressed opposition to extending provisions in the Coronavirus Aid, Relief, and Economic Security (CARES) Act that provide additional unemployment benefits past July 31.
The result of these efforts is to sharply curtail the power of workers to exit unsafe conditions. Without sufficient regulatory oversight, legal recourse, or the option to maintain income if they leave an unsafe job, the combined impact of these approaches is to force workers into a situation where they cannot keep themselves—and by extension, their families and communities—healthy unless they are willing to sacrifice their livelihoods.
The burden of these choices will almost certainly fall disproportionately on the populations that have been hardest hit by the virus to date. The low-income workers in front-line industries are disproportionately Black and Hispanic, disproportionately female, and disproportionately foreign born. In turn, working-age people of color are particularly likely to have preexisting conditions that put them at greatest risk from the virus. According to a Center for American Progress analysis, at least 28 percent of working-age people of color have a condition that could put them at higher risk of severe illness from COVID-19. These disparities, which reflect structural racism in the U.S. economy and health system, threaten to compound what the CDC has already described as a “disproportionate burden of illness and death among racial and ethnic minority groups” as a result of COVID-19. As a consequence, communities that were already facing higher levels of unemployment, the day-to-day impact of persistent wealth gaps, and significant inequities in access to and quality of health care are now facing additional disproportionate harm as a result of the pandemic.
A better path forward
Policymakers have another option, one that would not only protect workers but would also allow the economy to achieve a true recovery more quickly. That path forward involves the following four steps.
1. Put in place public health-based approaches that allow for safe reopening of the economy
As CAP has written previously, there is a playbook that communities can follow based on successful approaches taken elsewhere in the world to allow economic activity to restart in a way that is sustainable and that protects the health of both workers and broader communities. That approach involves establishing robust testing capacity to identify who has the disease, using contact tracing to determine who might be at risk of contracting it, and isolating positive cases. When states meet evidence-based incidence thresholds that confirm that testing, contact tracing, and isolation can suppress further outbreaks, stay-at-home orders can be safely lifted. However, putting these measures in place at scale requires a coordinated government response, one that ensures that sufficient testing is available, mobilizes the necessary workforce and technological capacity to track the spread of the disease, and responds intelligently to changing conditions.
Absent these vital measures, it is virtually impossible for employers, workers, and their broader communities to fully return to pre-COVID-19 activity without creating a risk of a broader outbreak. To the extent that people have the ability to choose, they will not go back to their precrisis behavior so long as they lack the confidence that the virus is under control, which means that they will continue to work at home, they will not travel, they will avoid eating out at restaurants or going to public events, and they will hesitate to shop at crowded stores. Indeed, both survey data and measures that track activity illustrate this.
A May 28–June 2 NBC/Wall Street Journal poll found that a majority of voters remained uncomfortable eating at a restaurant, attending a public gathering, or flying on a plane. In addition, highly localized data analyzed by a group out of Harvard University show that both consumer spending and small-business activity sharply fell before stay-at-home orders and has stayed at a depressed level, even if above its trough, in areas that have lifted those orders. This suggests that public health concerns will prevent full economic recovery absent a more aggressive public health response—even without any spikes in infections.
Meanwhile, many workers may not have the ability to choose. For example, fewer than 1 in 5 Black workers and fewer than 1 in 6 Hispanic workers can work from home. Moreover, low-income workers are likely to disproportionately use public transportation, which may put them at higher risk of contracting COVID-19. Indeed, previous outbreaks show how disparities in access to transportation can result in health disparities as well: Public transportation usage was associated with higher H1N1 hospitalization rates and identified as a key driver of racial disparities in H1N1 outcomes. Indeed, improved sanitization and social distancing standards for public transportation are a crucial step toward making sure that workers are not at risk of getting sick or transmitting the virus as they commute back and forth to work.
Until more robust public health measures are in place, forcing workers who lack the ability to telecommute to abide by unsafe working conditions will not reopen the economy in any meaningful way—but it will make workers, their families, and their communities less safe.
2. Establish more robust worker safety standards
As noted above, the administration’s proposed approach to worker safety is tantamount to imagining that so long as corporations are not held accountable for keeping their workers safe, a problem does not exist. Instead, government at the federal, state, and local levels needs to put in place measures that ensure workers—and therefore, customers and the general public—are safe, including the following.
An emergency OSHA standard, combined with stronger enforcement
OSHA should issue an emergency temporary standard mandating enforceable rules in the workplace to prevent the spread of COVID-19. In doing so, OSHA would not be starting from scratch. It can build on its previous work developing a draft infectious disease standard in health care settings, a framework of which was presented to a Small Business Advocacy Review Panel in 2014. Other models include OSHA’s existing infection control standard for bloodborne pathogens, its more general standards for personal protective equipment and respiratory protection, and California’s aerosol transmission disease standard issued in 2009 that applies to COVID-19.
Any emergency standard must be broad in scope and not narrowly tailored to one particular sector or set of occupations. Just as in OSHA’s bloodborne pathogen standard, an emergency standard must require each covered business to create an exposure control plan that requires them to comprehensively assess the risks to various categories of workers and then put a plan in place that effectively mitigates those risks. The AFL-CIO, which has an extensive history of partnering with businesses to improve worker safety and health, recommends including a mix of engineering controls, work practices, personal protective equipment, training, communication, medical surveillance, record keeping, and periodic evaluation of effectiveness. Engineering controls, such as ventilation and high-efficiency particulate air (HEPA) filtration, are particularly important, as they remove or mitigate hazardous conditions independent of worker interactions and make work easier, not harder, to perform. From a practical standpoint, any standard must in part include necessary social distancing, hand washing and sanitizing, deep cleaning, installing protective separation barriers such as shields, and the provision and use of adequate personal protective equipment. Employers must also be required to cover lost wages when a worker needs to self-quarantine because of exposure.
An emergency standard must be informed by public health experts as well as workers, who have a unique understanding of the risks they may be facing. Indeed, it is vitally important that a standard require employers to involve workers in the development, implementation, and evaluation of infection control plans. Workers will have critical insight into the particular risks and implementation challenges at their warehouse, plant, or store, and getting their buy-in will be key to ensuring employers take any necessary steps to execute a standard.
Indeed, workers’ undeniable insight into the risks they face is already protected by the Occupational Safety and Health Act. Under that law, workers who complain to their employer about unsafe or unhealthful working conditions are afforded protections against being fired or transferred, having hours reduced, or being denied a raise. It will be critical going forward for the Occupational Safety and Health Administration and state enforcement agencies to pay particular attention to whistleblowers, as they provide critical warning signs of workplaces unsafe for workers, consumers, and their communities at large.
In the absence of immediate action by OSHA, Congress should pass the Every Worker Protection Act—included in the House-passed Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act—which would mandate that the administration put forward a standard. OSHA should increase its levels of inspections and penalties for noncompliance and prioritize enforcement in any workplace in which workers are at higher risk, not just in health care facilities. OSHA should publicize these efforts, making clear that employers will be held accountable if they do not follow appropriate safety standards. In contrast to OSHA’s initial efforts to undo record-keeping requirements, firms should also be required to keep records of employee infections and report to local and state health authorities when workers have fallen ill due to COVID-19, while at the same time informing workers if they may have been exposed.
While it is crucial that additional worker protections be put in place at the federal level, states and localities should also pass measures protecting workers, along the lines of those laid out in model legislation drafted by the National Employment Law Project. Some governors may be able to issue an executive order effectively creating an emergency safety standard instead of waiting for legislative action, as Gov. Gretchen Whitmer (D) has done in Michigan.
Other tools could also be used at the federal level to shine a spotlight on employers that have inadequate protections for their workforce. For example, corporations should be required to disclose pandemic-related infections and workplace safety risks in their securities filings information. This could take the form of guidance from the U.S. Securities and Exchange Commission (SEC) requiring any regulated company to file a Form 8-K whenever multiple employees test positive for COVID-19 at a worksite or there is reasonable suspicion of transmission between employees.
Empowering workers to ensure that protections are in place
Rather than immunizing businesses from liability, which would give them license to engage in unsafe practices, workers should be empowered to ensure that necessary safety protections are in place. Most basically, workers must have the ability to refuse to work under unsafe conditions without being at risk of losing their jobs. Other needed steps include aggressive outreach to workers to ensure that they understand their rights, expanded access to whistleblower hotlines, and increased penalties for any retaliation against those whistleblowers. Importantly, these protections must be available to all workers, including employees of contractors and subcontractors. Importantly, the HEROES Act passed by the House not only includes funding for OSHA enforcement but also provides grants to organizations, including unions, to offer training to workers and employers on workplace safety and health hazards, responsibilities, and rights. The bill also extends protections from deportation and offers work authorization during the current public health emergency to essential workers without immigration status.
These protections go hand in hand with enhancing the ability of workers to organize and have a say in how safety standards are set. Unions remain perhaps the most powerful means of ensuring that safety protections are actually enforced. Efforts by essential workers to strike, despite lacking the ability to formally organize or collectively bargain under the National Labor Relations Act, nevertheless have served as powerful reminders of the power of collective action in pushing for greater workplace safety. Expanding collective bargaining rights and other basic labor protections to millions of additional workers would be particularly effective at securing safe working conditions. Measures in the Protecting the Right to Organize Act that, for example, prohibit private firms from requiring workers to sign arbitration agreements that strip them of their rights while at the same time enhancing the ability of workers to communicate about collective issues, are key tools in safeguarding worker health. And while the federal government should lead in ensuring that workers can organize and collectively bargain for safe workplaces, state and local governments can take a number of actions, such as creating safety committees that empower workers to improve workplace safety and public health.
Improving national efforts to make protective equipment available in all workplaces where it is needed
A barrier to reopening remains the lack of availability of sufficient protective equipment such as masks, which should be part of any safety standard. Rather than absolving employers of the responsibility to provide this equipment, the federal government needs to combine enforcement of appropriate standards that require providing adequate protective equipment to workers with efforts to scale up the production and distribution of this equipment and help small businesses procure it.
Ensuring that workers who contract COVID-19 on the job are able to receive adequate workers’ compensation
As noted earlier, workers’ compensation programs administered by states have seen significant erosions in the benefits they offer, leaving too many workers who are injured on the job to eventually fall into poverty. It will also be difficult for workers to prove that they contracted the illness on the job instead of at home or in the community. Some states, such as California and Wisconsin, have made it easier for essential workers or health care workers to obtain workers’ compensation by creating a rebuttable presumption that they contracted COVID-19 on the job, but many states have not taken such action.
Congress could consider passing legislation creating a new federal compensation program to pay robust benefits to workers who contract COVID-19 at work in full or to “top up” state benefits to a minimum level for these workers. Alternatively, the federal government could reimburse states for benefits to these workers if they pay a specified minimum benefit and adopt a rebuttable presumption for contracting the disease on the job. The federal government has created targeted compensation programs in other instances, such as the Black Lung Program, the Vaccine Injury Compensation Program, the Radiation Exposure Compensation Program, and the Energy Employees Occupational Illness Compensation Program.
3. Maintain robust unemployment benefits as an important backstop to worker safety
As noted above, in a labor market where the unemployment rate remains at elevated levels, employers have greater power to effectively force workers to accept the risk of contracting COVID-19 if the only alternative is a severe loss of income. As a result, continuing robust unemployment insurance benefits from the CARES Act should be seen as a core element of protecting worker safety, including through the following three tools.
States should not be permitted to rescind benefits for those who refuse to work under unsafe conditions
In addition to ensuring that workers will not lose their jobs if they report unsafe working conditions, the Department of Labor should immediately reaffirm that existing law protects workers who do not return to work because conditions are unsuitable; this protection should apply when workers are afraid of contracting COVID-19. This will clarify that states cannot limit unemployment compensation for workers if their employer is asking them to work under conditions where, for example, CDC guidelines are not being met or when they are afraid they might be at risk of transmitting coronavirus to older or immunocompromised people with whom they live. Indeed, workers should be able to collect unemployment benefits if they feel forced to strike against employers for unsafe working conditions; New York recently passed a law to allow this, and California has proposed doing so. Likewise, alongside efforts to ensure that public transportation is safer, workers should not lose benefits if they do not have access to safe means of getting to work.
Unemployment benefits must provide sufficient replacement for lost wages
The CARES Act made an important enhancement to unemployment benefits—which typically replace less than half of wages for jobless workers—by adding $600 per week to benefits. In recent weeks, some Senate Republicans have called for ending this provision when it expires on July 31, even though forecasters anticipate unemployment rates remaining in double digits for the rest of the year. These senators argue that more robust unemployment benefits create a disincentive for people to return to work, including in essential jobs.
However, there is little evidence that this is the case—and a strong need to continue the boost to benefits as long as unemployment remains elevated. At a moment when the job market is in severe distress, many workers are likely to prefer the security of a job over a small, temporary boost in benefits. Indeed, in cases that have been identified in news stories about this concern, workers were simply being called back to firms that were receiving federal money through the Paycheck Protection Program (PPP)—meaning it was a question of whether they were paid to be idle through the unemployment insurance (UI) system or the temporary PPP, not whether they were working.
And to the extent that robust UI benefits that provide sufficient wage replacement offer an alternative to unsafe work, this should be seen as an important component of raising the bar for employers—creating further pressure for them to improve conditions and pay for those workers they deem essential during the pandemic.
It is also crucial that other safety net programs be sufficiently available to households without forcing them into unsafe working conditions. For essential workers whose employers pay a poverty wage, benefits such as the Supplemental Nutrition Assistance Program (SNAP) can bridge the difference between going hungry and putting food on the table. However, SNAP imposes harsh work requirements, limiting assistance to three months over three years for most working-age adults without minor children unless they are able to report 20 hours of work per week. Those time limits are temporarily suspended for the duration of the public health emergency, but a worker’s choice to reduce hours or leave an unsafe job would have consequences far beyond the length of the temporary rules suspension. When the work requirements are reinstated, that worker could face a loss of food assistance if they cannot find work immediately, even though the end of the public health emergency is unlikely to signal an end to the economic crisis. Already, the Trump administration is moving forward with a rule to make cruel work requirements even more stringent when the public health emergency declaration ends.
Similarly, for immigrants, the so-called public charge rule—which allows applications certain immigration applications to be denied based on previous or potential future use of public benefits—could create added fear that assistance will not be available for immigrants who leave or lose a job. These efforts to restrict access to assistance, already morally and economically wrong-headed under normal circumstances, are especially misguided at a moment when they may force workers into unsafe conditions and endanger the broader public’s health.
Policies should directly aid workers, not just employers
The risk outlined above—removing robust unemployment benefits can create further pressure for workers to be forced into unsafe conditions—makes it critical that additional stimulus provide sufficient aid that goes directly to workers, rather than being routed through employers. To be clear, there are important reasons to provide assistance to small businesses under stress so that they aren’t forced out of business. Likewise, to the extent that connections are maintained between workers and their employers, such assistance may help ensure that any increase in unemployment is temporary. But approaches that provide assistance to firms for the purpose of supporting workers create the risk—if not paired with sufficient direct assistance to workers—that employers essentially have the power to determine who does and does not get government aid.
Consider a scenario where more robust unemployment benefits are permitted to expire, but business support programs, such as the current PPP, continue to effectively cover 100 percent of wages for workers through payments to business owners. Under those circumstances, government assistance would further strengthen employers’ ability to force workers into unsafe conditions.
The solution to this problem is simple: Robust unemployment benefits should continue for as long as support for businesses, large and small, is extended. That should include scaling up of programs such as work sharing that—by providing payments to workers who see reduced hours—can help businesses and employees alike, especially at a moment of uncertainty. It is also important that support for businesses include provisions ensuring that workers’ rights are upheld. Going forward, it is crucial that aid to corporations is not seen as a substitute for support for workers, particularly when it would not only result in a less equitable recovery but also put workers further at risk.
4. Workers must have paid leave, paid sick time, child care, and adequate pay
Even under typical circumstances, the United States significantly lags behind the rest of the world in offering paid leave and paid sick time, access to child care, and sufficient health coverage. The pandemic has further exposed those gaps in the system, in ways that put workers’ health and the broader health of their communities at risk. At the same time, many of the workers bearing the greatest risk from the coronavirus are among the most underpaid.
Without paid leave and paid sick time, workers who get sick or who are caring for sick family members cannot afford to stay home, making it more likely that they will go to work when they are at risk of spreading the virus. Exemptions in the current emergency paid leave provisions leave out workers in companies with more than 500 employees and potentially practically exclude workers at many small businesses with fewer than 50 employees, as well as health care providers, emergency responders, and any workers who “provide essential services relevant to the American people’s health and wellbeing.” Even among workers who are covered, the law only provides up to 10 days of paid sick leave that can be used to recover or care for a family member with COVID-19, and up to 12 weeks of leave to provide care to a child whose school or place of care is closed due to the pandemic. This is simply not enough for workers who may contract the virus or need to care for someone who has. As proposed in the House-passed HEROES Act, Congress needs to expand paid leave provisions to cover all workers and to expand the duration of leave for medical or caregiving purposes.
Without expanded access to health coverage, workers will fear that leaving a job that forces them into unsafe conditions will mean losing access to necessary health care during a pandemic. In addition, many of these workers are already uninsured, leaving them particularly vulnerable during the current pandemic. This risk is more likely for those who live in states that have yet to expand Medicaid, which include many of the same states that are rushing to reopen. Congress must ensure that those who are currently uninsured, as well as those who lose their job-based health care coverage, have the ability to obtain affordable coverage, including through expansions of Medicaid and health care subsidies. Furthermore, federal lawmakers must ensure that quality treatment for COVID-19 is available and accessible in all communities.
Without access to safe, affordable child care, workers who would otherwise return to safe workplaces may not be able to do so. With schools closed, many camps closing for the summer, and many child care providers either temporarily or permanently shuttered, returning to work is not a viable option for many workers who have no available options for child care. Like those who are afraid of returning to unsafe workplaces, workers facing these challenges are facing a bind in many states, where they are at risk of losing unemployment benefits if they cannot return to work due to a lack of available child care. Rather than force employees to return to unsafe workplaces, a better approach to getting more Americans back to work would be to ensure that those who can return safely to their jobs have access to the child care they need in order to do so. Congress needs to simultaneously ensure that workers who cannot return to work due to child care needs are protected from losing access to unemployment insurance or leave, while also providing sufficient resources to stabilize child care providers. Child care providers cannot safely reopen without adequate personal protective equipment for providers and staff, access to regular testing, and access to affordable cleaning and sanitation supplies. Moreover, child care providers need resources to pay their bills and employees while they are closed and as they implement social distancing measures while caring for fewer children and bringing in less revenue for the foreseeable future.
Finally, it is important that workers are receiving a fair wage for the work they are doing, especially given the risks they are taking. A disproportionate share of the workers who are facing risks from contracting COVID-19 are the same low-wage workers who have borne the brunt of wage stagnation, a lack of worker voice or representation, and a failure to raise the federal minimum wage. Workers who are appropriately being termed “essential” to the continued functioning of the American economy during the pandemic should receive additional compensation for their work; a good first step would be passage of a $200 billion “heroes fund” for extra pay for low-wage essential workers, as included in the House-passed HEROES Act.
An economic recovery from the COVID-19 crisis must simultaneously protect workers from economic insecurity and from the virus itself. Plans that place workers in unsafe conditions will increase the risk of greater spread of the coronavirus, making it harder for a robust recovery to take hold. Policymakers must put in place stronger workplace protections, while taking steps to support both workers on the job and those who are out of work.
Jacob Leibenluft is a senior fellow at the Center for American Progress. Ben Olinsky is the senior vice president of Policy and Strategy at the Center.
The authors would like to thank David Michaels of The George Washington University and Remington Gregg of Public Citizen, as well as CAP’s Maura Calsyn, Alexandra Cawthorne Gaines, Sarah Jane Glynn, Katie Hamm, Tom Jawetz, David Madland, Kelly Magsamen, Connor Maxwell, Justin Schweitzer, Danyelle Solomon, and Taryn Williams, for their helpful comments and feedback.
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