As Covid-19 Cases Rise in States that Rushed to Reopen, NELP Urges States to Protect All Workers and Prioritize Workers of Color

The National Employment Law Project urges state and local governments to protect the health, safety, and economic stability of underpaid and unemployed workers in their response to the COVID-19 pandemic—both during the crisis and in the ensuing recovery. These efforts must be the first step toward long-term structural change.

Workers and communities of color are coming together and leading the way to provide mutual aid, demand protections, and fight racist and exploitative policies. Because Black, Indigenous, and people of color are disproportionately impacted by the disease and job loss (with women also overrepresented as underpaid frontline workers) NELP is actively developing policies that prioritize them in creating solutions for all workers.

Rooted in structural and historic racism, occupational segregation has forced Black and brown people to disproportionately work in industries where they cannot work from home. Fewer than 20 percent of Black workers and 16 percent of Latinx workers have jobs where they can work at home. That’s why we see women and workers of color at increased risk of illness in frontline work as nursing staff and as home care, child care, grocery store, and nursing home workers. An estimated six million immigrants are in frontline essential jobs.

Along with workers, allies, and partners, NELP is gravely concerned that policies prematurely reopening state economies and businesses will exacerbate frontline workers’ exposure to COVID-19 and increase the number of people with heightened risk factors being forced to work for basic necessities like food and shelter. This is particularly disturbing when accounting for our recent survey finding that Black workers were twice as likely as white workers to report that they or someone at work may have been punished or fired for raising concerns about COVID-19 spreading in the workplace.

Workers deemed “essential” in this crisis have always been essential. This pandemic has exposed once again that workers doing vital labor have been underpaid, stripped of protections, and treated as expendable for far too long. The “essential” label has become distorted—conveniently used to justify endangering workers who lack proper protective equipment and safeguards at work. A prominent example of this is President Trump invoking the Defense Production Act in an effort to require meat processing plants to stay open during the pandemic—all while failing to ensure that the largely Black, Latinx, and immigrant workforce are protected from the disease. Coronavirus cases in meatpacking and poultry plants are continuing to rise at a rapid pace.

This pandemic has exposed once again that workers doing vital labor have been underpaid, stripped of protections, and treated as expendable for far too long.

Many states, localities, and employers have not implemented the necessary workplace protections to safely increase the number of workers returning to their workplaces. The federal government has failed to issue any requirements to protect workers from COVID-19 exposure in the workplace. Some Governors and cities have issued Executive Orders and ordinances requiring employers to protect workers on the job, but the majority have not.

Since Memorial Day, when many states began reopening, cases of coronavirus hospitalizations have risen with average daily new coronavirus cases increasing in 21 states. Workers face an impossible decision: to go back to work and risk their lives or refuse to go back prematurely and risk being cut off from unemployment insurance. Some states are creating policies that allow workers to stay home, while others are taking away unemployment insurance from workers if they refuse to return to work because they fear the contagion. At the same time, some members of Congress are trying to limit the liability of employers if workers get sick when they are forced to return.

Workers must be able to make personal decisions about their work and their health based on the factors known to them. While it’s true that under state unemployment insurance laws, your most recent employment is presumed to be “suitable work” that you must accept or risk losing benefits, that presumption goes away if the basic terms and working conditions of your job have changed. And if the conditions of your job expose you to an unreasonable health or safety risk, that work may well be unsuitable under state UI law.

Every state UI law includes something called the prevailing labor standards test, which says that if the wages, hours, or working conditions of a job being offered are substantially less favorable than what prevails in the local area, then that job is unsuitable and workers cannot be compelled to take it to retain their unemployment benefits. States should ensure that their practices and governmental policies are thoughtful and promote worker health and safety.

By opening states too soon, state policymakers are ignoring how COVID-19 may further devastate Black and Indigenous people and communities of color, who are disproportionately contracting and dying of the disease. We cannot accept loss of life to uphold the economy of the privileged. There is a different path that centers the health and economic stability of the most impacted workers, thereby protecting all workers, with programs and policies that provide immediate support and chart a long-term approach toward a just recovery and the dismantling of structural racism.

Examples of innovative solutions include funds that support workers in the informal economy, expanded paid sick leave, and expanded and expedited unemployment insurance. One solution that we believe holds great promise for rebuilding our economy is work-sharing, a program available in 27 states that enables employers to reopen gradually (and safely) by bringing employees back to work part-time, while they continue to receive unemployment insurance for the days they are not working. The sooner workers and their employers reattach, the greater the likelihood that these workers will not suffer the economic harm that comes with long-term unemployment or having to start over with a new job. With the federal government picking up the cost of work-sharing benefits under the CARES legislation, businesses can retain trained employees through the tough times until customers and demand for products and services fully return.

States should ensure that workers can continue to receive unemployment insurance if they fear returning to unsafe workplaces and that employers implement critical safety measure to mitigate the spread of COVID-19 in the workplace. NELP’s resources for policymakers, workers, employers, and others regarding workplace safety and health, unemployment insurance, and the rights of immigrant workers, gig workers, and temp workers are available at nelp.org.