Category Archives: Pandemics & Infectious Diseases

Occupational Safety and Health Administration (OSHA) and Worker Safety During the COVID-19 Pandemic

Source: David Michaels, Gregory R. Wagner, JAMA, September 16, 2020

With the coronavirus disease 2019 (COVID-19) pandemic, the US is facing an unprecedented, massive worker safety crisis. Thousands of workers are at risk for workplace exposure to severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) infection as they provide care for patients with COVID-19 or perform other “essential” services and daily functions and interact with other workers or the public. By law, employers in the US are required to provide workplaces free of recognized serious hazards. Enforcement of this law is the responsibility of the Occupational Safety and Health Administration (OSHA). While OSHA could be making an important contribution to reversing the spread of the SARS-CoV-2 virus and mitigate risk to workers, their families, and communities, the federal government has not fully utilized OSHA’s public safety authority in its efforts to reduce the risk of COVID-19.

Estimates based on data from the Centers for Disease Control and Prevention indicate that more than 150 000 hospital and nursing home staff have been infected by the SARS-CoV-2 virus at work, and more than 700 have died, although the actual numbers are unknown because of inadequate data collection systems. As the epidemic has spread, many other workers, including emergency responders, corrections officers, transit workers, and workers in meat and poultry factories, farms, grocery stores, and warehouses, also have been infected with SARS-CoV-2…..

Corporate Culprits Receiving Covid Aid

Source: Philip Mattera and Mellissa Chang, Good Jobs First, September 2020

This new report combining data from Covid Stimulus Watch and Violation Tracker shows how many CARES Act recipients have a history of corporate misconduct.

More than 43,000 businesses and non-profit organizations that received CARES Act funds have a history of misconduct, collectively paying $13 billion to settle civil and criminal penalties over the last decade.

Together, the same companies received $57 billion in grants and $91 billion in loans through the federal economic stimulus bill passed by Congress to mitigate the economic fallout from the COVID-19 pandemic.

Among the violations are workplace safety issues, leading in one case to the death of a worker, flouting of environmental standards, wage theft and defrauding the federal government. They raise the question whether greater scrutiny should be given to how recipients are using taxpayer dollars.

Mortality Rates From COVID-19 Are Lower In Unionized Nursing Homes

Source: Adam Dean, Atheendar Venkataramani, and Simeon Kimmel, Health Affairs, Ahead of Print, September 10, 2020
(subscription required)

From the abstract:
More than 40% of all reported coronavirus disease 2019 (COVID-19) deaths in the United States have occurred in nursing homes. As a result, health care worker access to personal protective equipment (PPE) and infection control policies in nursing homes have received increased attention. However, it is not known if the presence of health care worker unions in nursing homes is associated with COVID-19 mortality rates. Therefore, we used cross-sectional regression analysis to examine the association between the presence of health care worker unions and COVID-19 mortality rates in 355 nursing homes in New York State. Health care worker unions were associated with a 1.29 percentage point mortality reduction, which represents a 30% relative decrease in the COVID-19 mortality rate compared to facilities without health care worker unions. Unions were also associated with greater access to PPE, one mechanism that may link unions to lower COVID-19 mortality rates. [Editor’s Note: This Fast Track Ahead Of Print article is the accepted version of the peer-reviewed manuscript. The final edited version will appear in an upcoming issue of Health Affairs.]

Government Financial Management and the Coronavirus Pandemic: A Comparative Look at South Korea and the United States

Source: Sungho Park, Craig S. Maher, The American Review of Public Administration, Special issue: Double Issue Dedicated to COVID-19, Volume 50 Issue 6-7, August-October 2020
(subscription required)

From the abstract:
The novel coronavirus (COVID-19) is an infectious respiratory illness afflicting people to a degree not seen since the flu pandemic of 1968 when approximately one million lives were lost worldwide. What makes COVID-19 distinct is the rate at which it spread throughout the world, stress-testing health care systems and stymieing global economies. To confront this unprecedented crisis, nearly every country has been developing a wide range of policy responses, including fiscal measures. This study aims to discuss government fiscal responses to the pandemic from a financial management perspective. The core question is, “How does each country’s financial management system support its fiscal responses to the crisis?” We are particularly interested in reexamining commonly accepted norms about fiscal federalism and the fiscal condition of national and local governments heading into this pandemic. This study takes a comparative approach to the question, focusing on South Korea and the United States. Our findings suggest that the ability to respond to this pandemic in a comprehensive and effective manner is challenged by each nation’s financial management system that generates variation in policy coordination and responsiveness.

A Failure of Political Communication Not a Failure of Bureaucracy: The Danger of Presidential Misinformation During the COVID-19 Pandemic

Source: William Hatcher, The American Review of Public Administration, Special issue: Double Issue Dedicated to COVID-19, Volume 50 Issue 6-7, August-October 2020
(subscription required)

From the abstract:
President Trump’s communications during the novel coronavirus (COVID-19) pandemic violate principles of public health, such as practicing transparency and deferring to medical experts. Moreover, the president’s communications are dangerous and misleading, and his lack of leadership during the crisis limits the nation’s response to the problem, increases political polarization around public health issues of social distancing, and spreads incorrect information about health-related policies and medical procedures. To correct the dangerous path that the nation is on, the administration needs to adopt a more expert-centered approach to the crisis, and President Trump needs to practice compassion, empathy, and transparency in his communications.

Seeking Patterns in Chaos: Transactional Federalism in the Trump Administration’s Response to the COVID-19 Pandemic

Source: Cynthia J. Bowling, Jonathan M. Fisk, John C. Morris, The American Review of Public Administration, Special issue: Double Issue Dedicated to COVID-19, Volume 50 Issue 6-7, August-October 2020
(subscription required)

From the abstract:
The federal government’s response the novel coronavirus (COVID-19) pandemic has been marked by a series of apparently disjointed, chaotic, and confusing statements and actions on the part of both the White House and federal agencies charged with coordinating the federal response. These actions have left many state governors (and citizens) in a position to address the effects of the pandemic in a haphazard and atomistic manner. In this essay, we contend that the actions of the Trump administration, and its relationships with states and local governments, can best be understood through a lens of what we refer to as “transactional federalism,” in which federalism relationships are governed by a set of exchanges between the president and states, and between states. We conclude by discussing the ramifications of this form of federalism.

Sustaining Behavioral Health Services Through the Pandemic

Source: Karmen Hanson, LegisBrief, Vol. 28, No. 31, August 2020

….At any given time, approximately 20% of Americans live with a mental health disorder. Because of the potential for people to develop a psychological disorder due to pandemics like COVID-19, state legislatures, health departments and the federal government are implementing a variety of approaches to help…..

US racial inequality may be as deadly as COVID-19

Source: Elizabeth Wrigley-Field, Proceedings of the National Academy of Sciences (PNAS), first published August 24, 2020

From the abstract:
The COVID-19 pandemic is causing a catastrophic increase in US mortality. How does the scale of this pandemic compare to another US catastrophe: racial inequality? Using demographic models, I estimate how many excess White deaths would raise US White mortality to the best-ever (lowest) US Black level under alternative, plausible assumptions about the age patterning of excess mortality in 2020. I find that 400,000 excess White deaths would be needed to equal the best mortality ever recorded among Blacks. For White mortality in 2020 to reach levels that Blacks experience outside of pandemics, current COVID-19 mortality levels would need to increase by a factor of nearly 6. Moreover, White life expectancy in 2020 will remain higher than Black life expectancy has ever been unless nearly 700,000 excess White deaths occur. Even amid COVID-19, US White mortality is likely to be less than what US Blacks have experienced every year. I argue that, if Black disadvantage operates every year on the scale of Whites’ experience of COVID-19, then so too should the tools we deploy to fight it. Our imagination should not be limited by how accustomed the United States is to profound racial inequality.

New Labor Viscerality? Work Stoppages in the ‘New Work,’ Non-Union Economy

Source: Michael Duff, St. Louis University Law Journal, Forthcoming, Date Written: June 28, 2020

From the abstract:
The COVID-19 work stoppages involving employees refusing to work because they are fearful of contracting coronavirus provides a dramatic opportunity for newer workplace law observers to grasp a well-established legal rule: both unionized and non-union employees possess rights to engage in work stoppages under the National Labor Relations Act. This article explains that employees engaging in concerted work stoppages, in good faith reaction to health and safety dangers, are prima facie protected from discharge. The article carefully distinguishes between Section 7 and Section 502 work stoppages. Crucially, and contrary to Section 502 work stoppages, the health and safety-related work stoppages of non-union employees, protected by Section 7, are not subject to an “objective reasonableness” test.

Having analyzed the general legal protection of non-union work stoppages, and noting that work stoppages have been on the increase during the last two years, the article considers when legal protection may be withdrawn from such concerted activities because employees repeatedly and unpredictably engage in them—so called “unprotected intermittent strikes.” Discussing a recent NLRB decision, the article argues for an explicit and strengthened presumption of work stoppage protection for employees who are wholly unaffiliated with a union, even when those employees engage in repeated work stoppages in response to discrete workplace disputes or dangers.

Next, the article grapples with looming work stoppage issues emerging from expansion of the Gig economy. When workers are not “employees,” peaceful work stoppages may become increasingly subject to federal court injunction. The Norris-LaGuardia Act (the venerable 1932 federal anti-injunction law) does not by its terms apply to non-employees, possibly including putative non-employee Gig workers, raising the specter of a new era of “Government by Injunction.” Under existing antitrust law, non-employee workers may be viewed as “independent businesspeople” colluding through work stoppages to “fix prices.” The article argues that First Amendment avoidance principles should guide Sherman Act interpretation when non-employee worker activity does not resemble price fixing; and that, consistent with liability principles articulated in the Supreme Court’s recent opinion in Sessions v. Dimaya, antitrust law’s severe penalties should not be applied to Gig workers given the ambiguities in federal and state law employee definitions.

Finally, the article considers the potential for non-union private arbitration agreements exercising restraints on the NLRA rights of employees to engage in work stoppages in light of the Supreme Court’s labor law-diminishing opinion in Epic Systems.

Restricting Employee Travel During COVID-19: Yea or Nay?

Source: Maureen Minehan, Employment Alert, Vol. 37 no. 17, August 18, 2020
(subscription required)

From the abstract:
An employee submits a time off request for a week in late September. In a conversation with a co-worker, the employee says she is going to a wedding in a state known to be a coronavirus hotspot. The co-worker contacts HR and asks if your company will require the employee to self-quarantine for 14 days upon her return. If not, the co-worker says he wants permission to work from home for those two weeks himself because he is concerned about COVID-19 transmission from his colleague.

As COVID-19 shows little sign of disappearing this fall, employers who are bringing employees back to onsite work will need to consider their stance on personal travel by employees. Should they attempt to restrict personal travel? Require employees to report personal travel? Impose requirements for self-quarantine?

These are questions employers across the country are wrestling with as they establish policies and procedures to keep employees and customers healthy and safe. “As employees report to work, both employees and employers are concerned that employees who engage in personal travel to areas affected by COVID-19 may jeopardize the safety of the workplace,” Joseph McNelis III and Samuel Haaz, attorneys with Fox Rothschild, say in a client alert.