Fighting for the Right to a Safe Return to Work during the COVID-19 Pandemic

States across the country have been barreling towards reopening their economies, and ending the strict social distancing and business closure mandates that were put in place to blunt the spread of the deadly COVID-19 virus. Thus far, the pandemic has claimed more than 140,000 lives in this country;¹ and the reopening efforts now underway in the United States and around the world are coming with an explicit or implicit calculus that the costs of closing have been too high, even as infections are approaching fifteen million worldwide,² nearly four million of which are in the United States. Increasing numbers of Americans are expected to return to work when, at the same time, a majority are afraid of getting themselves or their families sick.³ To so many, the choice that confronts them is an impossible one: your money or your life.

Policymakers at every level feel much the same way, and by and large, they have responded by leaving workers vulnerable. As detailed in this report, the widespread despair and confusion has been exacerbated by a lack of decisive action by federal policymakers to ensure that everyone can count on a safe return to work, and that every worker has a right to a safe workplace once they’re there. While the Centers for Disease Control (CDC) have instituted reopening guidelines,⁴ the guidance is voluntary and does not have the force of law. The underfunded Occupational Safety and Health Administration (OSHA) of the Department of Labor (DOL), which does have the authority of law, has failed to issue any emergency rules related to possible COVID-19 exposure, and has only issued a single citation related to safety and the virus.⁵ And despite issuing more than twenty new guidance letters related to unemployment insurance since the beginning of the crisis, the Department of Labor has rejected requests from scores of labor and civil rights groups to direct states on what kind of circumstances enable workers to refuse a job without losing their unemployment benefits. While the “lockdown” of the economy through May 15 was essentially a national policy, the reopening has been left to the states with only minimal national guidance about procedures, fueling anxieties about how safe it is to return to work.

These anxieties are valid. Workplaces have been a leading source of the new viral outbreaks, and the Black and Latinx workers that dominate front-line production and service jobs are at the highest risk.⁶ Florida governor Ron DesSntis identified the source of a recent surge of cases statewide to outbreaks among farm workers.⁷ Approximately 57,000 nursing home staff and workers have died of COVID-19,⁸ representing more than 40 percent of COVID-19 deaths in the United States. Had safety regulators like the CDC and OSHA moved more quickly to enact safety regulations, Black and brown communities may not have experienced as high an infection and death rate.

To so many, the choice that confronts them is an impossible one: your money or your life.

These fears continue. According to the Economic Policy Institute, 71 percent of Black workers employed outside their home are fearful of bringing the coronavirus home, but only 40.6 percent receive hazard pay to make up for that higher risk. Working in such close proximity to sick patients, often without proper protective equipment, has put many workers at high risk. Marlenia Milanes of Jersey City told TIME magazine,⁹ “I’m not afraid to work. I would take care of anyone, but if I’m sick, how am I going to be any good for a patient?” The latest unemployment figures show that Black and Latinx workers have the highest rates of unemployment,¹⁰ and thus face the greatest financial risks if they refuse to return to work and if policymakers create additional barriers to bargaining to make workplaces safer.

Pandemic restrictions had closed other non-essential businesses like restaurants, hotels, hair salons, malls, libraries, and many more that require close personal contact. As states reopen these businesses, and workers face customers resistant to basic procedures like social distancing and wearing masks, we can expect workplace transmission to increase. Stories like that of Kiwi’s Pub and Grill,¹¹ which closed after six patrons were revealed to have been COVID-19 infected during the short period of reopening, will be repeated across the country. The desire to jump-start the economy and put the economic damage of the lockdowns in the rearview mirror is needlessly risking workers’ lives, and has undoubtedly contributed to the resurgence of infections nationwide

The extreme health risks posed by the re-openings underscore the need to safeguard workers’ fundamental human right to not to risk their lives, or their families’ lives, for the sake of a paycheck. The responsibility of maintaining a safe workplace falls to OSHA. Certainly, states can, and are, filling in the gaps left that OSHA’s negligence has created, and are enforcing and enacting workplace policies that protect the public health. But with OSHA failing, in most cases, workers will need to take action into their own hands. The National Labor Relations Act protects workers, whether or not they are in a union, who lodge collective complaints about health and safety and fear retaliatory actions. While only a minority of states have issued new guidance specifying which situations are clearly unsuitable due to COVID-19 risks, every state has some provision in their laws that gives workers a right to contest a call back that is unsafe. In this report, we will discuss these rights, and show how federal and state governments can act to support them.

OSHA Called Out Sick for COVID-19, but States Are Stepping In

OSHA, the federal agency responsible for workers’ well-being, has utterly failed millions of American workers during this crisis. Its fundamental role in government is to provide rules that employers must follow, or face penalties. But in the midst of a global pandemic, the agency has only provided rough guidelines, while enforcement would rely on officers’ subjective understanding of an employer’s “good-faith” effort to ensure worker safety. In fact, a number of safety standards have even been rolled back¹² to only include health care workers, and not even all essential workers. As David Michaels, former OSHA director in the Obama administration, told ProPublica,¹³ “Everyone else is told that there is nothing that OSHA could do.” However, it’s clear what OSHA can and must do: as put forward by the HEROES Act, which passed in the House of Representatives in mid-May 2020, OSHA needs to set enforceable emergency standards for every employer, based on CDC guidelines.

In the meantime, there have been thousands of OSHA complaints from workers hoping the agency responsible for their health and safety might intervene. According to one complaint tracker,¹⁴ the most frequent instances have been in the health sector—hospitals and nursing homes—but there have been a significant number from the manufacturing and retail sectors as well. And in meat packing plants across the country, where thousands of workers have contracted COVID-19,¹⁵ workers were explicitly denied any protection or oversight, upon orders from the highest office.¹⁶ Meanwhile, as of June 9, there was only one OSHA citation issued, according to a testimony from U.S. Labor Secretary Eugene Scalia.¹⁷

In the vacuum left by a federal agency that has been stripped down to its lowest staffing levels in forty-five years,¹⁸ states must step up to ensure worker safety. Federal OSHA law limits states from implementing their own work safety policies without formal approval from OSHA, making it challenging for states to offer additional protections. One way around preemption, according to a Harvard and National Employment Law Project (NELP) report,¹⁹ is for states to target workplaces with policies that are geared toward public safety rather than workplace safety, or workplace safety in as much as OSHA does not have existing rules governing that specific aspect of workplace conduct. Some options available to states include filing public nuisance lawsuits against a company, enforcing public health laws, or signing executive orders that apply to everyone, including workers. For example, states can require basic safety measures such as social distancing, use of face masks, and required use of hand sanitizer and gloves inside any establishment. States can also enforce a worker’s right to refuse unsafe work without repercussions—an OSHA rule that is, as NELP states,²⁰ weak and not often enforced, but which is on the books nonetheless, and can be used as a fulcrum. Importantly, the Harvard–NELP joint report²¹ also highlights the ability for states to pass paid leave laws, which can provide critical benefits for workers fearing their safety, and protect the millions of workers who were left out of the federal Families First Coronavirus Response Act (FFCRA).

As the Harvard–NELP report details, twenty-one states and Puerto Rico currently have state plans that do not conflict with federal OSHA’s preemption. For example, Illinois and Minnesota issued safety precaution executive orders that included guidelines for protective equipment and social distancing. Minnesota’s EO 20-56²² outlines requirements for reopening businesses, includes a mandate for each business that reopens to have a plan in place, which must include allowing employees to work from home whenever possible, set up health screenings prior to entering the workplace, social distancing within the business, worker hygiene protocols, and cleaning/ventilation protocols. Many states, including Massachusetts, Missouri, New York, Wisconsin, and Rhode Island, have put in place general duty laws, or rules that require “employers [to] keep workplaces free of known hazards causing or likely to cause death or serious physical harm.” Other states such as California have offered executive orders, rules, or regulations related specifically to aerosol-borne diseases like COVID-19, something that, surprisingly enough, OSHA has not done.

Recommended Policy Actions

• All states should move to write and pass enforceable worker and public safety state plans that would not fall under federal OSHA preemption. Those plans could be as general as requiring PPE and social distancing measures in all workplaces, or as specific as protocols for sectors that have seen a high number of COVID-19 cases. There are many model state plans and independent public policy reports, highlighted above, that can be replicated and adopted.
• States should shift their reopening timelines to align with health and safety guidelines released by the CDC²³ and the World Health Organization (WHO)²⁴: if the public is not safe, workers will not be either.
• The federal government should require OSHA to enforce COVID-19-specific guidelines for worker safety, as would be done by enacting the HEROES Act, which would set enforceable emergency standards for every employer, based on CDC guidelines.

The National Labor Relations Act: A Hidden Source of Worker Safety Rights

When most people think of laws that protect health and safety at work, they think of the Occupational Safety and Health Act (OSH Act) or state-level safety plans, but the National Labor Relations Act (NLRA) can also provide workers with legal protections with regard to their health and safety in the workplace. However, unlike the OSH Act, it is important for a variety of reasons that workers act in a collective fashion. First and foremost, this is because the NLRA does not protect individual rights, but rather “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Safety in the workplace is clearly within the purview of the act. If workers do not have adequate personal protective equipment (PPE) or are not provided working conditions that comply with CDC guidelines for social distancing and hygiene, the first thing they should do is get together and present their concerns and demands to management. This act itself is concerted activity, and any discipline or retaliation that follows as a result of good faith safety complaints would be a violation of workers’ labor rights. If the safety issues are not adequately addressed, workers may refuse to do work or walk off the job.²⁵

This is true whether or not the workers are members of a union, but there are greater protections if the workers are members of union with a collective bargaining agreement, because such agreements often require a safe workplace. However, even if the workers are not formally unionized, they should still act in as concerted manner as possible. This is because the remedies under the NLRA are weak, and, as the late labor law scholar Clyde Summers has aptly stated, “the reality of the right depends on the effectiveness of the remedy.”²⁶ Furthermore, the Labor Board, which is the sole prosecutor and arbiter of labor rights for most Americans, is a highly political agency, and is currently  composed of only three of its possible total of five members,²⁷ all of whom are pro-business Republicans.²⁸ The reality therefore is that mass concerted action by workers will provide far more protection from employer retaliation than the Labor Board ever would.

If workers do have to take collective action by walking out or refusing to work in an unsafe environment, they should seize the opportunity to discuss joining a union. The reality is that workers who have a union and a collective bargaining agreement often have just-cause protections, grievance procedures, safety committees, and various contractual provisions that can help ensure a safe workplace. Without a union that can ensure sustained attention and pressure on an employer, many workplaces will unfortunately become lax in pandemic mitigation.

Recommended Policy Actions

• The federal government should reform the NLRA to promote union organizing and election in a manner that comprehends what work is like today for many workers by allowing them full access to employer technology for the purpose of communicating with other workers about organizing and common workplace issues. Furthermore, due to the difficulty of holding on-site union elections, digital card checks should be implemented at all workplaces.
• Employees’ rights to walk out or strike should be enhanced by eliminating the restrictions added under the 1947 Taft–Hartley Act, which made most types of strikes illegal.²⁹ Furthermore, all states should amend their unemployment compensation laws to allow for unemployment compensation for workers on strike, with no waiting week.
• In the case of a first contract, after ninety days of negotiations, the union should have the right to demand expedited interest arbitration to decide the terms of the contract.

Your Money or Your Life: Fighting to Keep Unemployment Benefits When Companies Offer Unsafe Work

Thirty-four million Americans filed a claim³⁰for unemployment benefits in the week ending July 11—benefits averaging around $1,000 per week³¹ due to CARES Act expansions. However, this lifeline is at risk for those workers who refuse offers of work. One of the conditions of unemployment insurance eligibility is that workers be willing to accept an offer of suitable work. Indeed, employers are sent regular notices from the state when former employees file benefits, and are asked to inform the state whether they have offered them employment. What’s more, states like Louisiana³² are not just relying on these normal procedures: they’ve also issued press releases and launched special web pages to encourage employers to report not just on their own employees, but any unemployment insurance recipient who refuses an offer. Black and Latinx workers, who have substantially less wealth, undoubtedly feel an extra pressure to accede to the request to return to work, even if they are not ready, as they are not in a position to go without a paycheck or unemployment payments.

The issue, however, is not just whether workers feel safe to go back to work, but also that many workplaces are not adhering to the social distancing and protective equipment protocols needed to keep any worker safe. And the degree of risk of infection from COVID-19 is far greater among certain parts of the population, like older workers and immunocompromised individuals. Thankfully, the federal laws guiding state decisions are clear in their support of worker choice. Federal “prevailing conditions of work” provisions apply and prohibit a state from denying UI to a worker who refuses work if “the wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality.”³³ Thus, individuals called back to companies not following the procedures needed to protect their workforce, especially failing to provide what other similar businesses are doing in terms of social distancing, masks, and other protective equipment, should not be disqualified. These workers should be able to refuse to go back to work, but not lose their unemployment benefits.

When it comes to federal pandemic unemployment assistance (PUA), the rules are even clearer. PUA is governed by the standards laid out for any natural disaster, including the COVID-19 pandemic, wherein the federal government provides benefits to individuals displaced during periods of major safety risks. As laid out in federal regulations, “a position shall not be deemed to be suitable for an individual if the circumstances present any unusual risk to the health, safety, or morals of the individual, if it is impracticable for the individual to accept the position.”³⁴ This federal standard recognizes that in periods following natural disasters (like a hurricane, flood, or pandemic), many jobs across the economy could include major, unprecedented risks—and that workers need to be given the discretion to refrain from work that would endanger themselves, without worrying about losing unemployment aid.

However, when it comes to appropriately defining “suitable work,” the U.S. Department of Labor has once again abdicated its responsibility. Despite a request from more than two hundred national organizations,³⁵ Labor Secretary Scalia has refused to issue badly needed guidance on how states should apply these bedrock protections to the unique circumstances of the COVID-19 pandemic. During a U.S. Senate Finance committee hearing in June, Secretary Scalia commended U.S. DOL staff for issuing nineteen guidance opinions since the onset of the pandemic, but said that he had no authority when it comes to determining whether work is suitable during the reopening phase.³⁶ While DOL has issued regulations about suitable work protections before, they’ve now left the issues solely to the states. On July 21st, the Department of Labor’s Employment and Training Administration released new guidance³⁷ that clarifies that those who refuse work deemed unsuitable by a state but covered by pandemic unemployment assistance (like having the virus itself), they could collect PUA. Yet, DOL has yet to issue any directive on how underlying suitable works laws should be applied through the core state unemployment program.

Most states have issued some type of guidance or information on returning to work during the reopening phase, and for which reasons it may be deemed valid for a worker to refuse to return while remaining on unemployment benefits.³⁸ However, too many of these guidelines are general and assert that refusals to return to work will be decided on a case-by-case basis, indicating that each claim will be investigated individually by a member of the state agency.³⁹ This approach puts workers in a difficult position. If they refuse work, their benefits may be put on hold while the state investigates their claim—a financial risk many workers may not take. For example, Virginia has frozen benefits for 12,000 workers being investigated for refusing an offer of work.⁴⁰ Ten states lack any information specific to COVID-19 refusals to return to work, indicating that the regular unemployment case-by-case investigation process will be utilized.⁴¹ As of June 10, there were forty-one states with issued guidelines that delineate reasons for refusal, but thirteen of those forty-one states rely entirely on investigating claims on a case-by-case basis and do not describe specific allowances.⁴² (See Table1.) This means that in total, twenty-three states rely entirely on adjudicating UI refusal claims case by case. Of the states that do have guidelines that delineate specific reasons for refusal, the most popular allowances are for vulnerable individuals and for individuals who are already sick with COVID-19 or live with someone who is ill.⁴³ Many states encourage UI claimants that are refusing to return to work for reasons related to illness,⁴⁴ disability,⁴⁵ or lack of child care⁴⁶ to apply for either PUA or another state program, like paid leave or temporary disability insurance.⁴⁷

As of June 10, there were forty-one states with issued guidelines that delineate reasons for refusal, but thirteen of those forty-one states rely entirely on investigating claims on a case-by-case basis and do not describe specific allowances.

States that exempt vulnerable individuals define this allowance differently. Three states define “vulnerable individuals” as those with doctor’s orders saying that they are vulnerable.⁴⁸ Three states include the elderly and those with underlying health conditions as vulnerable.⁴⁹ Six states define the elderly, those with underlying health conditions, and those with doctor’s orders as vulnerable.⁵⁰ The remaining states that exempt vulnerable individuals do not formally define who is included.⁵¹

There are several states that serve as good examples of strong safeguards for workers who are hesitant to return to work. Qualifications include belonging to a vulnerable population, lacking child care, residing with a vulnerable individual, being sick oneself or residing with an ill individual, or having reasonable belief of a valid degree of COVID-19 risk in the workplace. These states include Colorado, Minnesota, North Carolina, Texas, and New Hampshire.⁵² They have issued straightforward guidelines that allow for workers to refuse to return to work if the employee is a vulnerable individual or resides with one, if child care is no longer available, if the employee has COVID-19, or resides with someone who does; and the state will investigate the reasonableness of their workplace presenting a high risk of COVID-19. Minnesota has guidelines that assert that the workplace will be considered unsafe for workers if the business does not create a COVID-19 preparedness plan for the workplace, as defined by state regulations.⁵³ As of May 28,⁵⁴ Colorado’s state agency responsible for unemployment received 1,100 refusal claims (with each claim potentially representing more than one person), and investigated 869 of those claims. Of those investigated, 16 percent were determined to be ineligible for unemployment insurance because of a refusal to return to work.

Furthermore, several states with guidelines clarify good cause for refusal of work during COVID-19. For example, Colorado considers it good cause to refuse work if the employer is not following “Safer at Home guidance and thus pose a clear health concern.”⁵⁵ North Carolina considers an employee’s health and safety at a “valid degree of risk” at work if the employer does not “comply with guidelines as set out by the CDC, other governmental authorities or industry groups as may be found in CDC guidance, the Governor’s Executive Orders, or other binding authority.”⁵⁶ Texas was an early adopter of return to work refusal guidelines: on April 30, the state workforce commission published a comprehensive list of “reasons benefits would be granted if the individual refused suitable work,” that span illness, child care, and vulnerable health status; the commission says that “any other situation will be subject to a case by case review.”⁵⁷

Many states have indicated either in the media or on state websites that they plan on determining a person’s eligibility for UI after refusing to return to work on a case-by-case basis, with vulnerable health status as one factor. The New York Times reported⁵⁸ that 179 businesses in Oklahoma have reported workers for refusing to return to work while collecting UI. Oklahoma is one of several states that has widely encouraged employers to report refusing workers to the state so the claimant’s unemployment benefits can be investigated; at the same time, no information is available to Oklahoma claimants on COVID-19-related reasons a worker could refuse. Ohio, Iowa, and South Carolina have also encouraged employers to report workers for refusing to return.⁵⁹ Utah, another state that will decide UI refusal claims entirely case by case, will not pay out any benefits to the claimant while the investigation is ongoing.⁶⁰ This could slow down the process for all claimants while denying desperately needed resources to individuals with valid reasons to refuse to return to work. Missouri, South Dakota, and Indiana are the only states, along with Washington, D.C., with guidelines that omit vulnerable health status as a valid reason to refuse to return to work while remaining eligible for unemployment, going even further than states that are looking at these issues on a case-by-case basis.⁶¹

Recommended Policy Actions

• The federal government should issue clear guidance for states in situations where workers refuse work based on reasonable fear of infection for both regular state UI and federal benefits.
• States should issue specific guidance on categories of pandemic-related return to work exemptions such as age, health conditions, and workplace noncompliance with social distancing and other safety features, and should not subject workers to the uncertainty of case-by-case decisions.

table 1

Paid Leave and New Approaches to Protections

With unemployment insurance protections limited and weak federal policies to protect safety at work, new policies are needed to fill the breach. To be sure, having access to paid family and medical leave could make a huge difference for those workers who cannot return to work because of their own health or because of the continued unavailability of child care (including the likely scenario that K–12 schools won’t open full-time in the fall).⁶³ In New York, the existence of paid family and medical leave is being utilized by the state to give an exit ramp to those who are now on unemployment but cannot go back to work, or even search for a job, given health and caregiving needs.⁶⁴ But the emergency paid leave measures passed by Congress exclude about half the workforce, and the patchwork of state and federal paid family and medical leave laws has too many holes to meet this large need.⁶⁵ If ever there was a time for Congress to finish the job of guaranteeing paid family and medical leave for all Americans it is now, during this precarious period of returning to work. But even paid family and medical leave requires a level of documentation that may be too high a bar for some Americans to reach. For many workers, they are just fearful of going back to work because they are concerned about their health and the health of their families amidst the uncertainty about the transmission of COVID-19.⁶⁶ When it comes to administrative or professional workers, some employers have been flexible in allowing workers to continue to telecommute even if offices technically can be open.

All workers should be given this type of flexibility. One possibility would be a flexible four-week grace period for workers being asked to return to work. In other words, if workers are unsure about returning to work, they should be given four weeks to make arrangements while learning from their co-workers and managers about safety procedures. During this grace period, workers would be able to continue to receive unemployment benefits, or paid family and medical leave benefits (either through emergency paid leave or state programs), to maintain their financial stability. Under this emergency provision, no worker would lose their job or benefits if they refused to go back to work in four weeks or less from when their employer notified them. States could implement revised benefit plans by amending their state unemployment insurance law, paid sick day rules, and family leave policies by executive order or emergency legislation. The rules should include job protection and benefits at the already established rates for unemployment insurance and paid family and medical leave or paid sick days for those who were not previously collecting UI. Moreover, those workers who do go back to work should be eligible for additional hazard pay, as included in the HEROES Act⁶⁷ (passed by the House but not the Senate) and proposed by states like Vermont,⁶⁸ either in the form of a one-time lump or a percentage on top of usual hourly wages like overtime.

Recommended Policy Actions

• Fix emergency paid leave so that it includes all workers, regardless of the size of their employer or their occupation (health care providers and emergency responders) and extend it through the duration of COVID-19 crisis.
• Create equitable wage replacement between all different types of care whether it be for a sick individual or for a dependent child.
• States should expand or create emergency paid leave, including situations where an individual may refuse to work in an unsafe working condition but who is not covered by UI benefits.

Conclusion

These are uniquely challenging and deeply anxious times for working families. Families need to look no further than rapidly increasing infection rates in states like Florida, Texas, and Oklahoma to understand the genuine risk that reopenings entails.⁶⁹ In this environment, inalienable human rights to health and life must come above the need to generate economic growth, and this report outlines some of the existing rights of workers and the need for the federal government and the states to do more to protect worker rights to a safe workplace, to advocate for improved conditions, and, if necessary, refuse to go to work if it would make them unhealthy to do so. Preserving the health of America’s greatest asset—its working people—is the right long-term investment to protect our economy. And if we are serious about meeting the imperatives of the racial justice protests spurred by the murder of George Floyd, we must address the fact that policies—like those that disqualify workers from unemployment benefits—too frequently drive and multiply the disastrous impacts that the pandemic has had on Black people and other communities of color. The time is now for the government to take full responsibility for the support it owes to the workforce in this country.

1. “Cases in the U.S.,” Center for Disease Control and Prevention, July 20, 2020, https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html.
2. “COVID-19 Dashboard,” John Hopkins University Center for Systems Science and Engineering, July 21, 2020, https://www.arcgis.com/apps/opsdashboard/index.html#/85320e2ea5424dfaaa75ae62e5c06e61.
3. Joseph Guzman, “Most Americans fear bringing the coronavirus home from work, poll finds,” The Hill, May 15, 2020, https://thehill.com/changing-america/well-being/longevity/497999-most-americans-fear-bringing-the-coronavirus-home-from.
4. Laura Meckler and Rachel Weiner, “CDC guidelines, released at last, offer low-key guide to reopening,” Washington Post, May 19, 2020, https://www.washingtonpost.com/local/education/cdc-guidelines-released-at-last-offer-low-key-guide-to-reopening/2020/05/19/c99eb63a-99f8-11ea-a282-386f56d579e6_story.html.
5. Taylor Telford, “Democrat accuses OSHA of being ‘invisible’ while infections rise among essential workers,” Washington Post, June 14, 2020, https://www.washingtonpost.com/business/2020/05/28/workers-safety-osha-coronavirus/.
6. Brooke Jackson-Glidden, “The Majority of Oregon’s Workplace-Related COVID-19 Outbreaks Are at Food Businesses,” Eater Portland, June 26, 2020, https://pdx.eater.com/2020/6/26/21304296/covid-outbreaks-food-businesses-pips-reopening-avenida-tropicale.
7. Michael Putney, “Florida Gov. Ron DeSantis attributes spike in coronavirus numbers to farm workers’ outbreak,” Local 10 News, June 12, 2020, https://www.local10.com/news/local/2020/06/13/florida-gov-ron-desantis-attributes-spike-in-coronavirus-numbers-to-farm-workers-outbreak/.
8. “More Than 40% of U.S. Coronavirus Deaths Are Linked to Nursing Homes,” The New York Times, July 15, 2020, https://www.nytimes.com/interactive/2020/us/coronavirus-nursing-homes.html.
9. Katie Reilly, “’It’s Getting Worse.’ Nursing Home Workers Confront Risks in Facilities Devastated by Coronavirus,” Time Magazine, May 29, 2020, https://time.com/5843893/nursing-homes-workers-coronavirus/.
10. Ben Casselman and Patricia Cohen, “Minority Workers Who Lagged in a Boom Are Hit Hard in a Bust,” New York Times, June 6, 2020, https://www.nytimes.com/2020/06/06/business/economy/jobs-report-minorities.html.
11. Danielle Prieur, “Kiwi’s Pub & Grill in Altamonte Springs Temporarily Closes After Guests Test Positive for Coronavirus,” WMFE Orlando, June 14, 2020, https://www.wmfe.org/kiwis-pub-grill-in-altamonte-springs-temporarily-closes-after-guests-test-positive-for-coronavirus/156734.
12. Michael Grabell, Maryam Jameel, and Bernice Yeung, “Millions of Essential Workers Are Being Left Out of COVID-19 Workplace Safety Protections, Thanks to OSHA,” ProPublica, April 16, 2020, https://www.propublica.org/article/millions-of-essential-workers-are-being-left-out-of-covid-19-workplace-safety-protections-thanks-to-osha.
13. Michael Grabell, Maryam Jameel, and Bernice Yeung, “Millions of Essential Workers Are Being Left Out of COVID-19 Workplace Safety Protections, Thanks to OSHA,” ProPublica, April 16, 2020, https://www.propublica.org/article/millions-of-essential-workers-are-being-left-out-of-covid-19-workplace-safety-protections-thanks-to-osha.
14. “OSHA Complaint Tracker,” Strikewave, https://www.thestrikewave.com/osha-complaint-map.
15. Megan Molteni, “Why Meatpacking Plants Have Become Covid-19 Hot Spots,” Wired, May 7, 2020, https://www.wired.com/story/why-meatpacking-plants-have-become-covid-19-hot-spots/
16. Deborah Berkowitz, “President Trump’s Meatpacking Plant Executive Order Puts Thousands Of Workers’ Lives At Risk,” National Employment Law Project, April 28, 2020, https://www.nelp.org/news-releases/president-trumps-meatpacking-plant-executive-order-puts-thousands-workers-lives-risk/.
17. Arthur Delaney and Dave Jamieson, “The Trump Administration Has Left Workplace Safety Up To Your Boss,” Huffington Post, June 2020.
18. Deborah Berkowitz, “Report: Number Of Federal Workplace Safety Inspectors Falls To 45-year Low,” National Employment Law Project,” April 28, 2020, https://www.nelp.org/news-releases/number-federal-workplace-safety-inspectors-falls-45-year-low/.
19. Jane Flanagan, Terri Gerstein, and Patricia Smith, “How States and Localities Can Protect Workplace Safety and Health,” National Employment Law Project and Harvard Law School, May 2020, https://lwp.law.harvard.edu/files/lwp/files/state_local_workplace_protection_lwp_nelp.pdf.
20. Deborah Berkowitz and Paul Sonn, “Protecting Worker Safety & Health in the COVID Crisis: A State & Local Model Policy Response,” National Employment Law Center, April 2020, https://s27147.pcdn.co/wp-content/uploads/Protecting-Worker-Safety-Health-COVID-State-Local-Policy-Response.pdf.
21. Jane Flanagan, Terri Gerstein, and Patricia Smith, “How States and Localities Can Protect Workplace Safety and Health,” National Employment Law Project and Harvard Law School, May 2020, https://lwp.law.harvard.edu/files/lwp/files/state_local_workplace_protection_lwp_nelp.pdf.
22. Governor Tim Walz Emergency Exec. Order 20-56 (2020), https://www.leg.state.mn.us/archive/execorders/20-56.pdf.
23. “Reopening Guidance for Cleaning and Disinfecting Public Spaces, Workplaces, Businesses, Schools, and Homes,” Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/community/reopen-guidance.html.
24. “Coronavirus disease (COVID-19) technical guidance: Guidance for schools, workplaces & institutions,” World Health Organization, https://www.who.int/emergencies/diseases/novel-coronavirus-2019/technical-guidance/guidance-for-schools-workplaces-institutions.
25. NLRB v. Washington Aluminum. 370 U.S. 9 (1962).
26. Clyde Summers, “Effective Remedies For Employment Rights: Preliminary Guidelines And Proposals,” University of Pennsylvania Law Review Vol. 141 (1992): 457, https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3640&context=penn_law_review.
27. Lynn Rhinehart and Celine McNicholas, “Three Republican-appointed white men are now deciding whether you have rights on the job,” Economic Policy Institute, December 17, 2019, https://www.epi.org/blog/three-republican-appointed-white-men-are-now-deciding-whether-you-have-rights-on-the-job/.
28. Judy Greenwald, “Pro-employer bent seen with NLRB’s new GOP majority,” Business Insurance, April 24, 2018, https://www.businessinsurance.com/article/00010101/NEWS06/912320779/Pro-employer-bent-seen-with-NLRB%E2%80%99s-new-GOP-majority.
    
29. Steven E. Abraham, “How the Taft-Hartley Act Hindered Unions,” Hofstra Labor and Employment Journal, Vol. 12: Iss. 1, (1994).
30. U.S. Department of Labor, “News Release: Unemployment Insurance Weekly Claims,” June 25, 2020, https://oui.doleta.gov/press/2020/062520.pdf.
31. Greg Iacurci, “This is what unemployment benefits will look like without that extra $600 a week,” CNBC, June 30, 2020, https://www.cnbc.com/2020/06/30/this-is-what-unemployment-benefits-will-pay-without-extra-600-a-week.html.
32. “LWC asking employers to report employees who refuse to return to work,” KATC News, June 11, 2020, https://www.katc.com/news/covering-louisiana/lwc-asking-employers-to-report-employees-who-refuse-to-return-to-work.
33. 26 U.S. Code § 3304 (a)(5)(B)
34. 20 CFR 625.5; 20 C.F.R. 625.13((b)(2)).
35. “Letter To Dol Urging Revised Guidance On Returning To Suitable Work,” National Employment Law Project, May 12, 2020, https://www.nelp.org/publication/letter-dol-urging-revised-guidance-returning-suitable-work/.
36. U.S. Congress, Senate, Committee on Finance, “Unemployment Insurance During COVID-19: The CARES Act and the Role of Unemployment Insurance During the Pandemic,” June 9, 2020, https://www.finance.senate.gov/hearings/unemployment-insurance-during-covid-19-the-cares-act-and-the-role-of-unemployment-insurance-during-the-pandemic.
37. Employment and Training Administration, “Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020 – Pandemic Unemployment Assistance (PUA) Additional Questions and Answers,” Assistant Secretary John Pallasch, Unemployment Insurance Program Letter NO. 16-20, Change 2, Washington DC: Department of Labor, 2020. https://wdr.doleta.gov/directives/attach/UIPL/UIPL_16-20_Change_2.pdf
38. Jack Stewart and Justin Ho, “Should employers report employees who don’t go back to work?” Marketplace, May 14, 2020, https://www.marketplace.org/2020/05/14/should-employers-report-employees-who-dont-go-back-to-work/
39. TCF analysis of state guidelines, “State Responses on COVID-19 Return to Work Refusals and State Unemployment Insurance” table.
40. Ally Schweitzer, “More Than 12,000 Virginians Have Lost Unemployment Benefits Because They Refuse To Return To Work,” DCist, June 19, 2020, https://dcist.com/story/20/06/19/virginia-unemployment-vec-benefits-frozen-covid19-work-fears/.
41. TCF analysis of state guidelines, “State Responses on COVID-19 Return to Work Refusals and State Unemployment Insurance” table
42. Ibid.
43. Ibid.
44. “Claimant FAQs about Unemployment Insurance and COVID-19,” Idaho Department of Labor, https://idahoatwork.com/2020/03/18/faqs-about-unemployment-insurance-and-covid-19/.
45. “Unemployment Insurance FAQs Regarding COVID-19,” Maine Department of Labor, June 29, 2020, https://www.maine.gov/labor/docs/2020/covid19/faq/english.pdf.
46. “COVID-19 frequently asked questions – Workers,” Washington State Employment Security Department, https://esd.wa.gov/newsroom/covid-19-worker-information.
47. TCF analysis of state guidelines, “State Responses on COVID-19 Return to Work Refusals and State Unemployment Insurance” table.
48. States are Oregon, New Hampshire and Massachusetts. TCF analysis of state guidelines, “State Responses on COVID-19 Return to Work Refusals and State Unemployment Insurance” table.
49. States are Texas, Montana, and Michigan. TCF analysis of state guidelines, “State Responses on COVID-19 Return to Work Refusals and State Unemployment Insurance” table.
50. States are Rhode Island, North Carolina, New Mexico, Minnesota, Colorado, and California. TCF analysis of state guidelines, “State Responses on COVID-19 Return to Work Refusals and State Unemployment Insurance” table.
51. States are Washington, Pennsylvania, Kentucky, and Arizona. TCF analysis of state guidelines, “State Responses on COVID-19 Return to Work Refusals and State Unemployment Insurance” table.
52. “Factsheet for Workers Returning to Work & Collecting Unemployment,” Colorado Department of Labor and Employment, https://www.colorado.gov/pacific/sites/default/files/Return%20to%20Work%20Guidance%20Fact%20Sheet.pdf; Minnesota Governor Tim Walz, “Emergency Executive Order 20-54, Protecting Workers from Unsafe Working Conditions and Retaliation During the COVID-19 Peacetime Emergency,” May 13, 2020, https://www.leg.state.mn.us/archive/execorders/20-54.pdf; “Returning to Work,” North Carolina Department of Commerce – Division of Employment Security, https://des.nc.gov/need-help/covid-19-information/returning-work; “Texas Workforce Commission Guidance to Unemployment Claimants,” Texas Workforce Commission, https://www.twc.texas.gov/texas-workforce-commission-guidance-unemployment-claimants.
53. Minnesota Governor Tim Walz, “Emergency Executive Order 20-54, Protecting Workers from Unsafe Working Conditions and Retaliation During the COVID-19 Peacetime Emergency,” May 13, 2020, https://www.leg.state.mn.us/archive/execorders/20-54.pdf
54. Janet Oravetz, “How the Colorado unemployment office is responding to refusals to return to work,” 9 News, May 28, 2020, https://www.9news.com/article/news/health/coronavirus/colorado-unemployment-claims-decline-department-labor-update/73-3f23e975-fbcf-4e81-8d9b-1cabdb36a299.
55. “Factsheet for Workers Returning to Work & Collecting Unemployment,” Colorado Department of Labor and Employment, https://www.colorado.gov/pacific/sites/default/files/Return%20to%20Work%20Guidance%20Fact%20Sheet.pdf.
56. “Returning to Work,” North Carolina Department of Commerce – Division of Employment Security, https://des.nc.gov/need-help/covid-19-information/returning-work.
57. “Texas Workforce Commission Guidance to Unemployment Claimants,” Texas Workforce Commission, https://www.twc.texas.gov/texas-workforce-commission-guidance-unemployment-claimants.
58. Jack Healy, “Workers Fearful of the Coronavirus Are Getting Fired and Losing Their Benefits,” New York Times, June 4, 2020, https://www.nytimes.com/2020/06/04/us/virus-unemployment-fired.html?referringSource=articleShare.
59. Lauren Aratani, “Ohio urges employers to report workers fearful of returning to work,” The Guardian, May 8, 2020, https://www.theguardian.com/world/2020/may/08/ohio-coronavirus-reopening-workers-unemployment-benefits; Holly Bailey, “As Iowa reopens, workers are being forced to choose between a paycheck and their health,” Washington Post, May 7, 2020, https://www.washingtonpost.com/politics/2020/05/07/iowa-reopens-workers-are-being-forced-chose-between-paycheck-their-health/; Andrew Brown, “SC jobs agency encourages employers to report people who don’t return to work,” The Post and Courier, April 28, 2020, https://www.postandcourier.com/health/covid19/sc-jobs-agency-encourages-employers-to-report-people-who-dont-return-to-work/article_a2e135fe-88a5-11ea-a4dd-6382956aace8.html.
60. “Returning to Work for Employees FAQ,” Utah Workforce Services, https://jobs.utah.gov/covid19/uireturningemployeefaq.pdf.
61. “Coronavirus (COVID-19) Information,” Missouri Department of Labor, https://labor.mo.gov/coronavirus; “Reemployment Assistance Benefits – Refusal to Return to Work,” South Dakota Department of Labor and Regulation, https://dlr.sd.gov/ra/individuals/refusal_to_work.aspx; “Claimant Frequently Asked Questions for COVID-19 work-related issues,” Indiana Department of Workforce Development, https://www.in.gov/dwd/files/Indiana_Unemployment_FAQ.pdf; “Accessing Unemployment Benefits: A Quick Guide To Applying,” District of Columbia Department of Employment Services, https://coronavirus.dc.gov/sites/default/files/dc/sites/coronavirus/page_content/attachments/Accessing%20Unemployment%20Quick%20Guide_r5.pdf.
62. COVID-19 data is current as of 7/21/20. Information on state guidelines collected as of 6/10/20.
63. Dana Goldstein and Eliza Shapiro, “Many Students Will Be in Classrooms Only Part of the Week This Fall,” New York Times, June 26, 2020, https://www.nytimes.com/2020/06/26/us/coronavirus-schools-reopen-fall.html.
64. “KNOW YOUR RIGHTS: COVID-19 Benefits & Paid Leave for New York Workers,” A Better Balance, July 2, 2020, https://www.abetterbalance.org/resources/know-your-rights-covid-19-benefits-leave-for-new-york-workers/#q02.
65. Steven Findlay, “Congress Left Big Gaps In The Paid Sick Days And Paid Leave Provisions Of The Coronavirus Emergency Legislation,” Health Affairs, April 29, 2020, https://www.healthaffairs.org/do/10.1377/hblog20200424.223002/full/; “A Policy Patchwork – Paid family leave laws in the states,” U.S. Chamber of Commerce Employment Policy Division, January 16, 2020, https://www.uschamber.com/report/policy-patchwork-paid-family-leave-laws-the-states.
66. Megan Cerullo, “Half of American professionals afraid to return to the office because of COVID-19,” CBS News, June 17, 2020, https://www.cbsnews.com/news/half-american-professionals-return-office-coronavirus-health-concerns/.
67. “Press Release: House Democrats Introduce The Heroes Act,” Congressman Bobby Scott, May 12, 2020, https://bobbyscott.house.gov/media-center/press-releases/house-democrats-introduce-the-heroes-act.
68. Grace Elletson, “Covid-19 Hazard Pay, Workers Compensation Bills Move through Senate Committees,” VTDigger, April 24, 2020, https://vtdigger.org/2020/04/24/covid-19-hazard-pay-workers-compensation-bills-move-through-senate-committees/.
69. Laura King, “COVID-19 surge in South, Southwest poses growing threat, experts warn,” Los Angeles Times, June 21, 2020, https://www.latimes.com/politics/story/2020-06-21/covid-19-surge-in-south-and-southwest-poses-threat.

Tags: economy, workers, Worker safety, covid-19