Category Archives: Health & Safety

Employment Law Implications of a Refusal to Work Due to Fear of COVID-19

Source: Phillips L. McWilliams, Employee Benefit Plan Review, Vol. 74, No. 5, July-August 2020
(subscription required)

From the abstract:
During the height of the COVID-19 pandemic in America, one healthcare worker told the press: “Every day when I go to work, I feel like a sheep going to slaughter.” As states continue to reopen and businesses bring employees back to work, it is likely that some employees will feel this same way and refuse to return to work due to a fear of contracting COVID-19. When this occurs, employers need to know their obligations under various federal, state, and local laws – some of which have just recently been enacted. Failure to properly account for this patchwork of laws when faced with an employee refusing to work could expose a company to legal liability.

As an initial matter, before bringing the full workforce back, employers should analyze their workspace and determine which guidelines from the Centers for Disease Control and Prevention (“CDC”) and similar agencies they should implement. Employers should also communicate the new safety measures and procedures to the workforce prior to reopening. This will help alleviate concerns employees have about contracting COVID-19 while at work. Still, there will likely be employees who refuse to return to work. Discussed below are the laws employers must keep in mind when such a scenario presents itself.

A State-by-State Look at Coronavirus in Prisons

Source: Marshall Project, Updated August 21, 2020

The Marshall Project is collecting data on COVID-19 infections in state and federal prisons. See how the virus has affected correctional facilities where you live.

Related:
Tracking the Spread of Coronavirus in Prisons
Source: Katie Park, Tom Meagher and Weihua Li, Marshall Project, April 24, 2020

A new Marshall Project effort has collected data on the prevalence of COVID-19 among prisoners and prison staff. Here’s what we know after one month of reporting.

Why unions are good for workers—especially in a crisis like COVID-19: 12 policies that would boost worker rights, safety, and wages

Source: Celine McNicholas, Lynn Rhinehart, Margaret Poydock, Heidi Shierholz, and Daniel Perez, Economic Policy Institute, August 25, 2020

From the summary:
What this report finds: The COVID-19 pandemic has underscored both the importance of unions in giving workers a collective voice in the workplace and the urgent need to reform U.S. labor laws to arrest the erosion of those rights. During the crisis, unionized workers have been able to secure enhanced safety measures, additional premium pay, paid sick time, and a say in the terms of furloughs or work-share arrangements to save jobs. These pandemic-specific benefits build on the many ways unions help workers. Following are just a few of the benefits, according to the latest data:

• Unionized workers (workers covered by a union contract) earn on average 11.2% more in wages than nonunionized peers (workers in the same industry and occupation with similar education and experience).
• Black and Hispanic workers get a larger boost from unionization. Black workers represented by a union are paid 13.7% more than their nonunionized peers. Hispanic workers represented by unions are paid 20.1% more than their nonunionized peers.

OSHA’s Next 50 Years: Legislating a Private Right of Action to Empower Workers

Source: Michael C. Duff, Thomas McGarity, Sidney Shapiro, Rena Steinzor and Katie Tracy, Center for Progressive Reform, July 2020

From the executive summary:
Over the last several decades, through a concentration of economic and political power by corporate executives and their allies in government institutions, workers have been systematically disempowered and silenced. Two important results of this dynamic are that the nation’s workplaces are not nearly as safe or healthy as they need to be to protect all workers, and workers lack the power they deserve to speak up against exploitation without fear of significant retaliation….

….As the 50th anniversaries of the Occupational Safety and Health Act (OSH Act) and OSHA approach in December 2020 and April 2021, respectively, it is time to address the law’s and agency’s shortcomings and chart a course of action to revolutionize worker health and safety for the next 50 years.

Fixing the current system requires an updated and vastly improved labor law that empowers workers to speak up about health and safety hazards, rather than risk their lives out of fear of losing employment and pay. It also requires that workers be empowered to fight back when government agencies fail to enforce safety and health requirements. Our vision is to guarantee all workers a private right of action to enforce violations of the OSH Act, coupled with incentives for speaking up and strong whistleblower protections to ensure workers can and will utilize their new authority. In addition, this private right of action should cover the millions of workers who are currently unprotected by OSHA, including misclassified independent contractors, agricultural workers, and public sector workers in states under federal OSHA’s jurisdiction. Congress should also ban mandatory arbitration as a condition of employment, since the purpose of such arbitration requirements is to disempower workers by denying access to the courts. Finally, Congress should require that all states and territories that operate their own occupational safety and health programs in lieu of federal OSHA incorporate a private right of action into their state plans.

Promoting laws and regulations that safeguard workers physically and financially and that rebalance the power dynamic between employers and workers is a necessary and vital step in building strong, resilient families and communities. Providing a private right of action, a common tool in a variety of other laws, is a long overdue measure that would empower workers to ensure safer and healthier workplaces when the agency tasked with protecting them is unwilling or unable to do so. Engaging workers more meaningfully in the enforcement of health and safety standards will not only improve their immediate conditions but also disrupt the cycle of worker disempowerment that contributes to unsafe and unhealthy working conditions, giving workers a voice to achieve lasting improvements in the workplace.

Libraries Reopen in COVID-19 Hot Spots: Are Library Staff Being Protected?

Source: Lindsey Williams, BookRiot, August 18, 2020

Arizona has made headlines quite often this summer as the state’s COVID-19 cases soared. As of August 13, the CDC reports that Arizona currently ranks third in cases per capita, falling only behind Louisiana and New York City.

In the state’s most populous county, Maricopa, two major library systems have yet to reopen. The Phoenix Public Library System, which has 17 branches located throughout the Phoenix area, states on their website that it “continues to remain closed to in-building visits in order to ensure we are doing all we can to keep our community and staff safe during our ongoing response to the Coronavirus pandemic.” The Maricopa County Library District, which has 20 branches located throughout the county, has also remained closed “in order to ensure we are doing all we can to keep our staff and community safe during this crisis.”

Despite this, several city libraries in Maricopa County made the decision to reopen, some as early as June 1. This begs the question: If the two major library systems in Maricopa County remain closed to the public to ensure the safety of their staff and patrons, what are the libraries that have chosen to reopen doing to protect their own?

Collective Bargaining in the Aftermath of COVID-19

Source: Henry E. Farber and Nicole Mormilo, Employee Relations Law Journal, Vol. 46, No. 2, Autumn 2020
(subscription required)

From the abstract:
The authors identify and explore issues stemming from COVID-19 that they expect to arise during labor negotiations. Those issues include: Management rights; Economics; Employer flexibility to adjust workforce; Benefits; Employee health and safety; and Force majeure clauses.

Pandemic Pandemonium: Navigating Employment Considerations in the Face of COVID-19

Source: April Boyer, Rio Gonzalez, and Erinn Rigney, Benefits Law Journal, Vol. 33, No. 2, Summer 2020
(subscription required)


From the abstract:
The global outbreak of COVID-19 presents significant issues for employers attempting to manage global and domestic workforces, address business disruptions, and navigate developing regulatory guidance and requirements. COVID-19 has led to seismic disruptions for employers, irrespective of their size or earlier financial stability. Amidst this pandemic, employers are continuing to wrestle with several challenges, including understanding and complying with new and existing laws, implementing workplace safety measures, and monitoring evolving federal, state, and local government responses and restrictions. Further, employers are beginning to assess re-open strategies and preparing to implement innovative solutions to an altered operational landscape. This article addresses how COVID-19 has affected businesses from an employment perspective; provide an overview of various regulatory changes; and identify future considerations as employers develop return-to-work strategies within the shadow of COVID-19.

Center for Progressive Reform Report: Protecting Workers In A Pandemic–What The Federal Government Should Be Doing

Source: Thomas McGarity, Michael C. Duff, Sidney A. Shapiro, Center for Progressive Reform Report, June 17, 2020

The “re-opening” of the American economy while the coronavirus that causes COVID-19 is still circulating puts workers at heightened risk of contracting the deadly virus. In some blue-collar industries, the risk is particularly acute because of the inherent nature of the work itself and of the workplaces in which it is conducted. And the risk, for a variety of reasons, falls disproportionately on people of color and low-income workers. With governors stay-at-home orders and other pandemic safety restrictions, Center for Progressive Reform Member Scholars Thomas McGarity, Michael Duff, and Sidney Shapiro examine the federal government’s many missed opportunities to stem the spread of the virus in the nation’s workplaces, and make recommendations for what needs to happen next to protect employees on the job.

Ergonomics Tips for Working at Home

Source: University of Pittsburgh School of Education, June 2020

Millions of Americans are working from home in the ongoing public health effort to halt the spread of coronavirus. But many don’t have the benefit of home offices. They are creating makeshift workspaces from their dining room tables, kitchen counters, living room couches, or folding tables and chairs. While these workstations may meet basic needs, most fail to provide sound ergonomic design, according to April Chambers, an assistant professor at the University of Pittsburgh School of Education. Chambers specializes in occupational ergonomics and bioengineering. She expects a steep rise in the number of people who are experiencing pain or discomfort in their neck, back, or shoulders. Unchecked, the pain can develop into long-term musculoskeletal injuries.