About the Author: Siena Richardson is a first year law student at American University- Washington College of Law. Siena graduated from NYU and is interested in public interest work after graduating law school.
It is no secret that the coronavirus has had a dramatic impact on workers worldwide. Millions of Americans have filed for unemployment since the pandemic precipitated lockdowns throughout the United States in March; those who remain in the workforce face significant challenges. COVID-19 has exposed insufficient worker protection policies throughout the U.S. economy. Many employees lack paid sick leave, inclusive policies, and safety protections at work. The pandemic’s impacts are amplifying existing inequalities, with workers of color, immigrants, women, LGBTQ+ workers, and those in low-wage positions most severely impacted.[1]
Paid Sick Leave
Workers in many industries lack paid sick leave, particularly those in customer service positions.[2] In the food service industry, only seventy-five percent of workers have paid sick leave. This not only threatens worker wellbeing, but increases the risk of virus transmission, between workers and customers alike.[3] Reports suggest that flu infection rates dropped by eleven percent after some states required employers to offer paid sick leave.[4] In the midst of a highly contagious pandemic, this has particular salience. The Families First Coronavirus Response Act (FFCRA), passed in March, provides paid sick leave to some workers,[5] but the benefits only apply to employees of companies with more than fifty and fewer than 500 employees, leaving millions still without coverage.[6] At present, the FFCRA paid leave provisions will only remain effective until the end of this year.[7]
Gender Equity
Women are dropping out of the workforce at high rates, due in part to childcare concerns.[8] Thirty two percent of individuals in the U.S. workforce have a school-aged child and are thus impacted by school closures.[9] As a result, women are facing higher unemployment rates than men. This is attributed both to the fact that there are more single mothers than single fathers, and that between married parents in different-sex couples, “women spend more than 40 percent more time on childcare than men do.”[10] Studies suggest policies for flexible scheduling and employer- or state-funded childcare could mitigate these negative impacts.[11] The FFCRA’s paid leave policy is a crucial benefit to many working parents, but does not provide a solution to the larger childcare problem families face. Gender equity advocates agree the FFCRA efforts are insufficient, with the National Women’s Law Center advocating an investment of “at least $50 billion for the child care sector.”[12]
LGBTQ-Inclusive Policies
The FFCRA implicitly includes same sex married couples in spousal benefits, but advocacy groups insist this is hardly comprehensive enough to protect queer workers. Out and Equal, an LGBTQ workplace advocacy organization, suggests that employers should explicitly provide domestic partner benefits, reasonable accommodations for trans workers who may be experiencing delays in gender-affirming care, and mental health care services.[13] These types of protections cannot be left up to individual employers, and should be the standard for workers across the country.
Workplace Safety Standards
Many workers who lack the option to work remotely face increased risk of coronavirus infection, but policies to implement safety standards have been largely absent. The Department of Labor’s Occupational Safety and Health Administration (OSHA) has refused to provide a national standard for worker safety, despite pressure from labor organizations and lawmakers.[14] AFL-CIO, one of the country’s largest unions, sued OSHA in May, seeking to require the organization to issue national guidelines to protect workers from COVID-19 exposure on the job.[15] AFL-CIO has released reports indicating that OSHA has failed to investigate the vast majority of claims, and that the citations it has issued have been insufficient.[16] (Two California Amazon facilities were fined less than two thousand dollars, after a complaint that the facility failed “to close off sections of the warehouse believed to have been visited by infected employees” and exhibited communication “so poor that workers learned an employee died from Covid-19 in media reports.”)[17] The D.C. Circuit Court declined to compel OSHA to release a temporary safety standard, but states have implemented their own measures to protect worker safety. [18] Virginia became first in the nation to adopt coronavirus-specific worker protection rules in July, including provisions to require mental health care and protect whistleblowers who speak publicly about safety concerns at their workplace.[19] Several other states have followed suit, but the lack of a national standard remains troubling. Workers in many European countries have more substantive collective bargaining protections and have been consequently better protected than American workers writ large.[20]
With the additional burden workers in many sectors of our economy have had to shoulder during the coronavirus pandemic thus far, it is clear that the current protections under FFCRA do not go far enough. As the pandemic continues, Congress must provide explicit protections for workers, if lawmakers wish to prevent more dramatic increases in inequality.
[1] Tracking the COVID-19 Recession’s Effects on Food, Housing, and Employment Hardships, Center on Budget and Policy Priorities (October 15, 2020), https://www.cbpp.org/research/poverty-and-inequality/tracking-the-covid-19-recessions-effects-on-food-housing-and; Rakesh Kochhar, Unemployment rate is higher than officially recorded, more so for women and certain other groups, Pew Research (June 30, 2020), https://www.pewresearch.org/fact-tank/2020/06/30/unemployment-rate-is-higher-than-officially-recorded-more-so-for-women-and-certain-other-groups/ ; Rakesh Kochhar, Hispanic women, immigrants, young adults, those with less education hit hardest by COVID-19 job losses, Pew Research (June 9, 2020), https://www.pewresearch.org/fact-tank/2020/06/09/hispanic-women-immigrants-young-adults-those-with-less-education-hit-hardest-by-covid-19-job-losses/; The Economic Impact Of Covid-19 On The LGBTQ Community, Human Rights Campaign Foundation, https://assets2.hrc.org/files/assets/resources/COVID19-EconomicImpact-IssueBrief-042220.pdf?_ga=2.251239302.14393411.1603046682-1436415790.1603046682; Oscar Lopez, Economic impact of coronavirus zeroes in on Black LGBT+ Americans, Reuters (August 4, 2020, 10:01AM), https://www.reuters.com/article/us-health-coronavirus-lgbt-trfn/economic-impact-of-coronavirus-zeroes-in-on-black-lgbt-americans-idUSKCN2501TW.
[2] Lazaro Gamio, The Workers Who Face the Greatest Coronavirus Risk, New York Times (March 15, 2020) https://www.nytimes.com/interactive/2020/03/15/business/economy/coronavirus-worker-risk.html.
[3] Kimberly Kindy, As coronavirus spreads, the people who prepare your food probably don’t have paid sick leave, Washington Post (March 4, 2020, 2:08 PM) https://www.washingtonpost.com/national/as-coronavirus-spreads-the-people-who-prepare-your-food-probably-dont-have-paid-sick-leave/2020/03/04/7b35965a-5d51-11ea-9055-5fa12981bbbf_story.html.
[4] Id.
[5] Families First Coronavirus Response Act: Employee Paid Leave Rights, Department of Labor, https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave.
[6] Lazaro Gamio, The Workers Who Face the Greatest Coronavirus Risk, New York Times (March 15, 2020) https://www.nytimes.com/interactive/2020/03/15/business/economy/coronavirus-worker-risk.html.
[7] Families First Coronavirus Response Act: Employee Paid Leave Rights, Department of Labor, https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave.
[8] Titan Alon et al., Impact of the Covid-19 Crisis on Women’s Employment, Econofact.org (August 27, 2020), https://econofact.org/impact-of-the-covid-19-crisis-on-womens-employment.
[9]Id.
[10] Titan Alon et al., This Time It’s Different: The Role Of Women’s Employment In A Pandemic Recession, Working Paper 27660, National Bureau Of Economic Research (August 2020), https://www.nber.org/papers/w27660.pdf.
[11] COVID-19 and gender equality: Countering the regressive effects, McKinsey Global Institute (July 15, 2020), https://www.mckinsey.com/featured-insights/future-of-work/covid-19-and-gender-equality-countering-the-regressive-effects.
[12] NWLC Announces Legal Network for Gender Equity’s Expanded Services to Help Workers Secure COVID-19 Emergency Paid Leave, National Women’s Law Center (Jun 22, 2020, 11:29), https://www.prnewswire.com/news-releases/nwlc-announces-legal-network-for-gender-equitys-expanded-services-to-help-workers-secure-covid-19-emergency-paid-leave-301081119.html.
[13] LGBTQ Employees and the COVID-19 Pandemic, Out and Equal, https://outandequal.org/covid19-lgbtq/.
[14] Kate Gibson, OSHA has failed to protect workers from COVID-19, unions say, CBS News (October 9, 2020, 2:52 PM), https://www.cbsnews.com/news/osha-covid-19-guidlines-protection-failed-unions-accuse/.
[15] Id.
[16] Id.
[17] Annie Palmer, Amazon fined by OSHA for coronavirus safety violations at two California warehouses, CNBC (October 9, 2020, 6:53 PM), https://www.cnbc.com/2020/10/09/california-osha-fines-amazon-for-coronavirus-safety-violations.html.
[18] Fatima Hussein & Robert Iafolla, D.C. Cir. Rejects AFL-CIO Request for Emergency Virus Standard, CNBC (June 11, 2020, 12:46 PM), https://news.bloomberglaw.com/safety/d-c-cir-rejects-afl-cio-request-for-emergency-virus-standard.
[19] Bruce Rolfsen, First-in-Nation Worker Virus Safety Rule Adopted in Virginia (1), Bloomberg Law (July 15, 2020, 3:51 PM), https://news.bloomberglaw.com/safety/first-in-nation-worker-virus-protection-rule-adopted-in-virginia?context=article-related.
[20] Liz Mineo, How COVID turned a spotlight on weak worker rights, The Harvard Gazette (June 23, 2020), https://news.harvard.edu/gazette/story/2020/06/labor-law-experts-discuss-workers-rights-in-covid-19/ .
