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Excerpted From: James J. Brudney, Forsaken Heroes: Covid-19 and Frontline Essential Workers, 48 Fordham Urban Law Journal 1 (December 2020) (Full Document) (247 Footnotes)
Tin Aye emigrated from a refugee camp in Thailand to Colorado in 2007 with her husband and two children. She worked at the JBS meatpacking plant in Greeley. On May 17, 2020, she died of complications from COVID-19 after being hospitalized on a ventilator for seven weeks. At the time, Aye, age 60, was the eighth JBS Greeley employee (and seventh worker) confirmed to have died from COVID-19; 316 plant workers had tested positive by May 17.
Sandra Kunz, a Walmart cashier, died on April 20, 2020, from complications related to the coronavirus. Despite being 72 years old with a lung condition, Kunz continued working--her husband was injured and out of work, and the couple had bills to pay. Public health and worker safety experts recognize the register as the most dangerous place in the store. Cashiers work at arm's length from customers all day, making social distancing virtually impossible.
When the COVID-19 pandemic engulfed the United States in early 2020, the concept of essential workers rose to prominence. While the category became a focus for media coverage and political debate, its definition and boundaries have been somewhat fluid. According to the Department of Homeland Security Cybersecurity and Infrastructure Security Agency Advisory Memorandum, the category covers 17 broad groups of workers, amounting to almost half of the workforce. And the CISA guidance, intended to be overly broad, has spawned a range of state responses as to what constitutes “essential work.”
These varied definitional approaches bypass an important distinction among essential workers: those who basically work from home versus those who must travel to their jobs and interact with coworkers and the public on a regular basis. The 40% of essential workers who can work from home have not been unduly vulnerable or precarious. If anything, they were among the fortunate who could count on reasonably steady income in a safe workspace at a time when one-quarter of the working population was experiencing unemployment or pay reductions. On the other hand, roughly 60% of essential workers--often referred to as frontline essential (FE)--can only do their jobs in person.
FE workers are the subject of this Article. The health and safety risks that they endure in service to the economy and country have made them heroes, supportively portrayed in the media and celebrated in cities at a designated early evening hour. What these heroes have not received is adequate workplace health and safety rights or protections.
In addition to individuals like Tin Aye and Sandra Kunz, FE workers encompass at least six identified frontline industry groupings: (1) grocery, convenience, and drug store workers; (2) healthcare professionals and support personnel; (3) public transit workers; (4) janitors and building cleaners; (5) trucking, warehouse, and postal workers; and (6) childcare and social service workers. They produce, process, or deliver vital goods and services at their regular workplaces, interacting with patients, customers, clients, and fellow workers.
There are more than 30 million FE workers in the United States, comprising over 20% of the workforce. Although demographic trends vary across industries, FE workers are overall less white, more Black, more female, more foreign born, and more likely to live in low-income families than the U.S. population as a whole. FE workers also bear disproportionate health risks--as evidenced by higher rates of infection, serious illness, and death.
In the face of these risks, there has been a conspicuous lack of federal leadership in protecting FE workers. One federal law enacted during the pandemic provides for paid sick leave, but only to a fraction of those working in FE jobs--and the Department of Labor (DOL) has weakened the provisions Congress approved. With respect to protections such as mandatory personal protective equipment (PPE), social distancing requirements, hazard or premium pay, and application of existing or emergency safety standards, DOL has promulgated mild forms of guidance that offer little meaningful protection and has engaged in virtually no enforcement. A handful of state and local governments have taken partial steps to fill in these large gaps. Overall, the law's response has been fragmented and disappointing.
Some additional protections have resulted from collective bargaining or lobbying efforts by unions. Of particular relevance are union efforts to secure congressional protection for the airline industry that covers up to two million employees. These major industry-wide payroll and job protective provisions differ dramatically from the law's traditional employer-specific responses to job losses and pandemic conditions in general. The exceptional nature of the industry-wide approach illustrates challenges faced by the great majority of FE workers who, like the great majority of workers nationally, lack union representation that can help them secure such protections.
At the same time, the COVID-19 crisis presents an opportunity for some basic rethinking of how the law regulates workplace safety and health. To start, federal law must address safety and health protections more substantially in industry-wide terms. Rather than relegating millions of FE workers to the piecemeal responses described below, this Article contends that safety and health regulation needs to develop on an occupational or sectoral basis to complement existing firm-specific approaches. Further, safety and health protests driven by unusually hazardous conditions such as COVID-19 deserve meaningful protection that the law does not currently provide. To that end, federal law regulating the scope and consequences of lawful strikes must be reformed.
Part I of this Article explores the composition of the FE workforce, including its demographics and income levels, union status, and extent of COVID-19 exposure. Part II addresses in detail the state of legal protection for FE workers, assessing inadequacies in the laws as written and implemented. Part III reflects on the two aspects of legislative change just mentioned, explaining how they can help address the safety and health deficits FE workers (and millions of others) have confronted during the pandemic.
The impact of COVID-19 vividly demonstrates that the nature and extent of health risks vary with the working conditions experienced in different industries and occupation groups. For FE workers whose lives and health are most at risk, a comparable sectoral or industry-wide framework must play a key part in legislative and regulatory responses. Possible models for such a sectoral approach exist--in tripartite arrangements on wages that have featured federal and state government participation, and in past and present industry-wide collective bargaining agreements.
COVID-19 also has shown how grave workplace hazards can arise with little or no warning and persist or worsen if unaddressed. Yet our conception of protected forms of worker protest against such hazards has withered over decades of adverse court and agency rulings. Labor law currently provides limited protection for peaceful grievance-related strikes motivated by health and safety concerns, or for health and safety refusals to work in abnormally dangerous conditions. These minimal protections should be extended: by expanding the definition of strikes to cover intermittent or repeated safety-related walkouts and slowdowns, with or without a union presence, and by prohibiting permanent replacements for all such protest actions.
Finally, this Article refers briefly to the unresolved challenges of immigration law reform--for FE workers in various occupational sectors where non-citizens are vital to performance, it is well past time for legislative or regulatory action.
[. . .]
The United States is living through its worst public health crisis in more than a century, combined with an economic and employment crisis reminiscent of the Great Depression, and a national awakening to fundamental racialinequalities that rival those confronted in the 1960s. Given such a confluence of events, this Article has focused on the grave weaknesses of our laws meant to safeguard the health and safety of workers in the United States, and especially FE workers.
At the same time, the crises may serve as a moment of opportunity. The country has been sensitized to the heroic role FE workers play; these men and women need and deserve far better workplace protections, for the sake of their health, their families, their communities, and their lives. This Article has examined how particular reforms can reshape our regulatory approach to workplace safety and health protections, and thereby enhance workers' capacity to express legitimate needs and assure rights to meaningful protection. Whether these or similar legislative measures will emerge from the present crises--as occurred in the context of prior national emergencies and moments of opportunity--remains to be seen.
Joseph Crowley Chair in Labor and Employment Law, Fordham University School of Law
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