Forsaken Heroes: Covid-19 and Frontline Essential Workers

60 Pages Posted: 28 Jul 2020

Date Written: July 28, 2020

Abstract

When the Covid-19 pandemic engulfed the United States in early 2020, the concept of essential workers rose to prominence. Within that broadly defined group, this Article examines the workplace safety and health protections available to frontline essential (FE) workers: the health care professionals and support personnel, grocery and convenience store workers, janitors and building cleaners, warehouse workers, transit workers, and others who must travel to their jobs and interact with coworkers and the public on a regular basis. There are more than 30 million FE workers; when compared to the U.S. workforce, they are more African-American, more female, more foreign born, and more likely to live in low-income families. FE workers also bear disproportionate health risks, as evidenced by their rates of infection, serious illness, and death.

The risks that FE workers endure in service to the economy and country have made them heroes, supportively portrayed in the media and celebrated in cities at a designated early evening hour. Yet in the face of these risks, FE workers have confronted a remarkable absence of legal protections. The Article examines this situation in depth, assessing inadequacies in federal and state laws as written and implemented with respect to paid leave, PPE and social distancing requirements, emergency worker protection standards, hazard pay, whistleblower protections, and the right to refuse unsafe work.

At the same time, the current crisis presents an opportunity for rethinking how the law regulates workplace safety and health. To that end, the Article proposes and justifies two major changes in federal law.

First safety and health protections should be addressed in industry-wide rather than simply employer-specific terms. The impact of Covid-19 vividly demonstrates that the nature and extent of health risks vary with the working conditions experienced in different industries or occupation groups. For FE workers whose lives and health are most at risk, a comparable sectoral or industry-wide framework must play a key part in legislative and regulatory responses. Possible models for such a sectoral approach exist—in tripartite arrangements on wages that have featured federal and state government participation; and in past and present industry-wide collective bargaining agreements.

Second, safety and health protests deserve meaningful protection that the law does not now provide. Covid-19 has shown how grave hazards faced by FE workers in diverse occupational settings can arise with little or no warning and persist or worsen if unaddressed. Labor law, however, provides limited protection for peaceful grievance-related strikes motivated by health and safety concerns, or for health and safety refusals to work in abnormally dangerous conditions. These minimal protections should be extended by expanding the definition of lawfully protected strikes to cover intermittent or repeated safety-related walkouts and slowdowns, and by prohibiting permanent replacements for all such protest actions.

Keywords: labor law, employment law, employment benefits, safety-and-health law, public health, collective bargaining

Suggested Citation

Brudney, James Jules, Forsaken Heroes: Covid-19 and Frontline Essential Workers (July 28, 2020). Forthcoming, 48 Fordham Urban Law Journal __ 2021, Fordham Law Legal Studies Research Paper No. 3662434, Available at SSRN: https://ssrn.com/abstract=3662434

James Jules Brudney (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States
212-636-7387 (Phone)

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