The longer the COVID-19 pandemic has continued, the clearer it has become that essential workers do not have the rights and protections they need and deserve.
Too many essential workers—a term whose definition varies by location but includes millions of health care workers, as well as workers that ensure Americans can buy food and household items—do not have adequate safety gear, access to health care or paid family and medical leave, decent pay or a strong voice at work to ensure fair treatment and compliance with existing standards.
These workers are making it possible for the country to continue to function during the crisis, yet they are not being treated with dignity and respect.
Further, the country cannot effectively control the pandemic without taking actions to limit the number of essential workers who catch and spread COVID-19.
There is an urgent need to ensure that essential workers have access to a set of rights and protections that will enable their work to continue safely and effectively during a public health emergency.
Addressing COVID-19 will require a plan with many components—including strong stay-at-home orders and increased testing—but it also requires a strategy for essential workers. The U.S. cannot realistically keep social distancing going in a safe way if these essential workers are not afforded better conditions, pay and benefits.
Essential workers need seven core policy reforms:
- Safety standards to protect them from airborne infectious diseases
- Additional compensation for the risks they are taking
- Paid family and medical leave that they can use to care for themselves or their families
- Access to affordable health care if they become sick
- Quality child care so they can go to work while many schools and centers are closed
- Strong enforcement of workplace standards
- Access to unions to help implement safety protections and compensation standards above the minimum
Ultimately, all workers deserve basic rights and protections. Indeed, the long-term strategy to protect public health, mitigate the risks of future outbreaks, and ensure that the eventual recovery benefits most Americans needs to fix structural problems in the economy and society—and ensure that workers benefit more from growth than they did in the pre-coronavirus economy. Permanent reforms that protect worker rights and increase worker power would create an economy more resilient to challenges such as COVID-19 and are necessary in its aftermath.
With Congress gearing up for another round of emergency coronavirus legislation, there is an immediate opportunity to provide essential workers with the rights and protections they need. The following sections provide a road map for federal legislators to help essential workers.
These seven core policies should cover both employees and independent contractors. Protections for independent contractors should not include any presumption that these workers are not employees, nor should they create a new employment classification with few rights.
These protections should also apply with equal force to farmworkers, who are playing a critical role in helping preserve the nation’s food security, as well as to all people regardless of immigration status.
Immigrants are playing a disproportionately large role as essential workers in many industries and occupations—including in health care, retail and wholesale, manufacturing and agriculture—and nearly one-third of all recipients of Deferred Action for Childhood Arrivals (DACA) are “essential critical infrastructure workers,” according to the Department of Homeland Security’s own guidance.
(It is worth noting that many of the policies to protect essential workers, or similar policies, could be adopted by state and local policymakers.)
1. Safety Standards
Essential workers are facing a health and safety crisis due to inadequate safety standards and a massive shortage of personal protective equipment.
Under the previous administration, the Occupational Safety and Health Administration (OSHA) was working to develop an infectious disease workplace standard that would have prepared workers for this type of pandemic—but the Trump administration halted that work.
Now, despite its congressionally mandated obligation to protect employees from “grave danger,” the federal agency tasked with protecting worker health and safety is telling workers there is nothing it can do.
To address this problem, OSHA must issue an emergency standard to protect front line workers from airborne infectious diseases, just as it requires protections against the spread of bloodborne illnesses.
Congress should direct OSHA to issue requirements that employers implement protective measures for all essential workers—including Transportation Security Administration workers, direct-care workers, first responders, pharmacists, grocery store workers and other employees at essential places that remain open during health emergencies—as leading lawmakers and labor groups have called for.
Guidelines and training for how essential workers can minimize the risks of infecting their families should also be provided. These protections should be coupled with a dramatic increase in the production of personal protective equipment.
2. Additional Compensation
When essential workers do their jobs, they are taking a risk that they will get sick with COVID-19 and not only suffer themselves but also potentially expose and harm their families. Even if workers are provided with strong safety protections, they are still taking a risk—and these risks should be adequately rewarded.
Essential workers should be paid at least the prevailing wage rate that government contractors must pay, or $15 per hour, whichever is higher.
If the worker is categorized as an independent contractor rather than an employee, they should be paid a premium rate for the additional costs they must bear.
Pay for essential workers should be higher than the levels of the emergency unemployment benefits that are in the process of being provided—and this should be accomplished by raising pay for essential workers, not by cutting unemployment benefits. That could be achieved with either direct reimbursement to businesses for incremental worker costs above pre-crisis levels or tax credits directly to workers—with the government reserving the right to impose a windfall profits tax on firms that are subsidized following the resolution of the crisis.
3. Paid Family and Medical Leave
Essential workers are risking the health and well-being of themselves and their families but are not uniformly guaranteed access to any form of paid leave.
As many as 96 million workers are left out of the emergency paid leave provisions included in the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief and Economic Security (CARES) Act, and many essential workers are explicitly exempted from coverage.
Through the FFCRA, qualifying workers are now eligible for up to two weeks of short-term paid leave if they are sick or self-quarantining or caring for a family member, as well as an additional 10 weeks of paid child care leave to care for a child whose school or place of care is closed.
First, this amount of leave will be insufficient for many workers who become ill or need to care for a family member diagnosed with COVID-19.
Second, while short-term paid sick days used for a worker’s own health are paid at 100 percent wage replacement up to $511 per day, any paid leave used for caregiving, short or longer term, is paid at two-thirds of a worker’s normal wages, capped at $200 per day. This explicit devaluing of caregiving is likely to have a disproportionately negative impact on the economic security of women—especially women of color—who are more likely to be the caregivers and breadwinners in their families.
Finally, essential workers may not even qualify for these protections, based on loopholes and exemptions that were added in the negotiations process. Employers with more than 500 employees—a category that includes all major grocery store and pharmacy chains—are exempted from providing any guaranteed paid leave to their workforces.
Additionally, the rules issued by the U.S. Department of Labor interpreting the FFCRA have made it even harder for workers to access paid leave. Employers with fewer than 50 workers can self-determine that they are exempt from providing the paid child care leave protections in the new law without any approval required from the department, and the Office of Management and Budget can decide to exclude millions of federal workers.
There are also exemptions that employers can use to deny paid leave to otherwise-qualifying health care providers and emergency responders, including “any individual who is capable of providing health care services necessary to combat the COVID-19 public health emergency.”
In short, the very people who are necessary to ensure the public health of their communities are explicitly singled out to be denied the right to paid leave if they themselves fall ill or need to care for their loved ones.
All essential workers, regardless of the type of job they hold or their immigration status, deserve the right to guaranteed, robust and comprehensive paid family and medical leave that can be used to care for themselves or their families.
4. Access to Affordable Health Care
The Affordable Care Act dramatically increased health care coverage rates, but millions of Americans—including many essential workers—still do not have access to affordable health care, especially in states that have yet to expand their Medicaid programs.
Congress must ensure that essential workers have access to no-cost testing and treatment for COVID-19, but that is just the first step.
Ultimately, all Americans, including essential workers, need a plan to guarantee universal health coverage.
But as a first step in this crisis, Congress must ensure that essential workers have access to no-cost testing and treatment for COVID-19.
And to ensure that testing and treatment are available regardless of immigration status, Congress should confirm that treatment for COVID-19 or a related condition is treatment for an “emergency condition” under 42 U.S.C. 1396b(v).
5. Quality Child Care
For millions of essential workers, including front-line health workers, the ability to work is dependent on access to child care. With schools and child care centers across the country closing to comply with social distancing guidelines, there is a significant need for emergency child care to serve children of these essential workers.
Child care programs stepping up to provide emergency child care are facing the challenges of keeping the children in their care safe and healthy and minimizing the risks of infection—following guidance issued by the Centers for Disease Control and Prevention—while at the same time maintaining the financial stability of their programs.
With early childhood educators making less than $12 per hour, on average, this pandemic has highlighted the role this underpaid workforce plays as the backbone of the American economy and the critical role it is playing right now to support front-line essential workers.
Congress must ensure that funding is available to support educators who are providing this care, both through direct support to cover the increased costs of operating at this time and through providing hazard pay and full benefits to the educators who are putting themselves at risk every day by leaving their homes to do their jobs.
6. Strong Enforcement of Workplace Standards
Unfortunately, the mere existence of legal safety standards or other protections does not mean that workers will actually benefit from them. Indeed, even before the current crisis, evidence suggested that violations of legal workplace standards were widespread.
During the pandemic, violations may even increase, as there will be few, if any, government inspectors.
To help effectively enforce workplace standards for essential workers, essential workers should be permitted to take action on their own, or even on behalf of the government, against companies that violate their rights, and when courts rule in their favor, they should receive back pay, damages, attorneys’ fees, and injunctive relief.
Grants should be provided to community and worker organizations that have access to workers and can help report on violations.
Finally, a board should be created to provide additional oversight of companies that receive government aid, akin to the Recovery Accountability and Transparency Board set up after the Great Recession but with an express mission to target workplace violations.
7. Unions and Collective Bargaining
Essential workers need unions and collective bargaining so they can negotiate on a relatively even footing with their employers about wages, benefits and working conditions.
While legislated standards are critical to setting a floor, collective bargaining can help compensation and safety protections increase above the minimum. Collective bargaining is also essential for tailoring standards to a particular industry and workplace.
Finally, because unions help protect workers that speak up against unsafe conditions, they are critical for ensuring that safety protections are actually followed. Indeed, essential workers—many of whom do not have a union or a way to collectively bargain with their employers—have increasingly felt the need to go on strike to seek safety and workplace improvements.
Thus, any company that hires an essential worker, whether that worker is categorized as an employee or independent contractor, must comply with the Protecting the Right to Organize Act.
That means, for example, that private firms cannot force workers to attend anti-union meetings or sign arbitration agreements that get rid of their rights, and they must give workers the ability to communicate with each other about collective issues. Essential public sector workers should also have union rights.
Ultimately, sectoral bargaining is likely to be the most effective way to facilitate collective bargaining for essential workers, as it enables standards and working conditions to be negotiated for all workers in an industry. In contrast, the traditional workplace-by-workplace bargaining can take more time to spread standards out and also does not cover workers who are not currently unionized.
During the pandemic, this sectoral model has proven successful in Germany and other countries, and related models served the United States well during World War I and World War II through the creation of war labor boards.
Addressing the public health crisis the country currently faces requires many actions such as social distancing, but it also requires improved rights and protections for essential workers. Enhanced protections for essential workers will help limit the spread of COVID-19.
Further, people taking risks to help the country function at a time of crisis deserve strong protections to minimize the risks they face. It is unfair to put people in harm’s way without adequate rights and protections.
Finally, enhanced rights and protections are necessary to adequately compensate essential workers and to build a stronger, more resilient economy.
The coronavirus pandemic and the response by federal, state and local authorities is fast-moving.
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