Category Archives: Health & Safety

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.]

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.

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?