The Right to Safe Work: How COVID-19 Reveals Socioeconomic Gaps in Workers’ Protection Laws
As of mid-2021, the United States is struggling with a resurgence of the COVID-19 pandemic amid reports that the new Delta variant of the virus can infect fully vaccinated individuals. Consequently, many nonessential workers are hesitant to return to their workplaces in person. Their concerns about workplace safety during the pandemic’s resurgence call for legal scholars and policymakers to revisit the Occupational Health and Safety Act of 1970 (OSH Act), which requires employers to ensure that workplaces are “free of recognized harms” and entitles employees to file a complaint to the Occupational Safety and Health Administration (OSHA) without retaliation from their employer. [1] Upon applying U.S. court precedent involving the OSH Act to workplace settings in the context of the COVID-19 pandemic, two points become clear. First, if employers fail to require COVID-19 vaccinations and provide accommodations for those who cannot get vaccinated, employees have a right to refuse to work and petition OSHA; second, a lack of guaranteed compensation in the OSH Act threatens the financial stability of employees refusing to work, revealing a critical gap in the existing legal framework.
Unlike other laws protecting workers, which are more limited in scope, the OSH Act entitles all employees to workplace protections against COVID-19. For instance, while the Age Discrimination in Employment Act of 1967 prohibits employers from excluding individuals from the workplace based on their age, it does not include a right to accommodations due to age alone. This means that the act grants older workers no additional workplace protections, despite their being at a higher risk of contracting and dying from COVID-19 than their younger counterparts. [2] Additionally, the Americans with Disabilities Act (ADA) only grants accommodations, such as telework, to employees at high risk from COVID-19 due to their disability. In the context of COVID-19, the limitations of these acts are significant: over 95% of deaths from the virus were people older than forty-five, regardless of disability status, yet both acts fail to protect all employees in this demographic. [3] Thus, the OSH Act stands as the main piece of legislation protecting all workers against COVID-19. Despite this, OSHA guidance, as of June 10, 2021, states that most employers are not required to take precautions to protect workers who are fully vaccinated and not otherwise at-risk from COVID-19 exposure. [4] While this guidance appears to limit the applications of the OSH Act to COVID-19, the increasingly dangerous threat of the Delta variant to both vaccinated and unvaccinated individuals suggests that employees still have grounds to petition OSHA for expanded workplace protections.
The standards set by the ADA and OSHA prove that the danger of COVID-19 creates an unsafe workplace, invoking these acts’ guarantee of workplace protections. Titles I and V of the ADA, reissued during the pandemic, state that COVID-19 meets their “direct threat” standard, meaning that the presence of an infected person poses a “significant risk of substantial harm” to the health and safety of others that cannot be mitigated through reasonable accommodations. [5] Because COVID-19 falls under the explicitly classification of a “direct threat” under the ADA, it is reasonable to assume that it also meets the OSH Act’s standard of “risk of serious harm,” due to the parallel language in the two pieces of legislation. [6] Past Supreme Court cases have affirmed the link between the two definitions: in Chevron U.S.A. Inc v Echazabal (2002), Chevron refused to hire an employee with a liver condition because conditions at the oil refinery exacerbate the disability. [7] Echazabal lost the case because the court found the employer would “risk violating the OSH Act” if they hired an individual to work in a place that would pose a "direct threat" to their health, per the ADA regulation. [8] As a result, it becomes essential, under both acts, for workplaces to establish necessary protections from the “threat” and “risk” COVID-19 poses to employees.
Data from the Centers for Disease Control and Prevention (CDC) suggests that such protections must extend beyond mask mandates to vaccination requirements. According to the CDC, a “close contact” is someone exposed to COVID-19 because they were within two meters of an infected person for at “least fifteen minutes within a twenty-four-hour period,” a scenario employees fear will affect them in their workplace if a co-worker becomes infected. [9] The definition of close contact applies regardless of whether or not either person was wearing a mask. Because two meter social distancing requirements are difficult to enforce in a closed workspace, it becomes clear that mask requirements alone cannot be considered sufficient workplace protection against COVID-19 exposure. [10] Vaccine requirements, therefore, prove to be necessary to eliminate the “direct threat” and “risk of serious harm.” This is especially true with the rise of the Delta variant of the virus, which accounts for over eighty percent of current COVID-19 cases in America and spreads two to three times faster than the original strain. [11] Given the highly transmissible nature of the Delta variant and the brevity of the exposure period, it is reasonable to conclude that workplaces without vaccine requirements––and accommodations for those who cannot be vaccinated––violate OSHA’s standard of a safe and healthful workplace.
Court rulings have affirmed that vaccine mandates are in fact essential. In the first federal court opinion on mandatory COVID-19 vaccinations, Bridges, et al v. Houston Methodist Hospital, et al (2021), a federal District Court in Texas dismissed a challenge to the Houston Methodist Hospital’s policy, which required all employees be vaccinated against COVID-19. [12] The plaintiffs, all of whom were employees at the hospital, argued that the choice between vaccination and termination was a form of coercion. The judge reprimanded the plaintiffs for implying that vaccines were not necessary and ruled that they were not coerced because employees could choose to get vaccinated or “simply” find another workplace. [13] Despite reinforcing the necessity of vaccine requirements, the Bridges decision already demonstrates the judiciary’s fundamental misunderstanding of the working class and most employees’ (in)ability to “simply” find another job.
When exactly, however, can a worker refuse to work due to unsafe conditions? The answer lies within OSHA. As previously mentioned, employees can petition OSHA if their workplace is unsafe without fear of retaliation from their employer. Federal courts have upheld that concerns over COVID-19 safety should be handled by OSHA directly. In Palmer et al v. Amazon.com Inc et al (2020), employees at a fulfillment center operated by Amazon.com Inc (henceforth “Amazon”) and their family members sued Amazon for failing to comply with public health guidelines and laws regarding the COVID-19 pandemic. [14] Employees at the plant were required to interact closely with other workers and repeatedly touch items that had been touched by other workers, even while Amazon’s productivity requirements discouraged basic hygiene practices and social distancing. [15] The U.S. District Court of the Eastern District of New York dismissed the case because courts, unlike OSHA, are not public health experts and cannot guarantee adequate safety standards across all industries. [16] The Palmer ruling, moreover, affirmed that claims of an employer’s lack of adherence to COVID-19 safety policies, such as vaccine requirements, are at the “heart of OSHA’s expertise and discretion.” [17] Petitioning OSHA, therefore, is the main reasonable path an employee can pursue without termination.
However, protections against termination are not adequate to protect employees who live paycheck to paycheck and need a guarantee of timely pay. The plaintiffs in Palmer sought damages for failure to timely pay for COVID-19 sick leave under New York Labor Law (NYLL) § 191 and stated that even unpaid leave was “functionally unavailable” to new employees. [18] The court dismissed this claim with prejudice––permanently rejecting the plaintiffs’ demands for back pay––because they viewed COVID-19 leave as a type of sick leave, which is not subject to NYLL in regards to timely pay. [19] The court noted that labor law differs from the OSH Act in that it is “primarily remedial in nature,” while OSH is preventative. [20] Because the decision in Palmer precludes back pay from labor law jurisdiction, it forces employees to instead rely on OSHA for compensation if they have to take time off due to COVID-19.
It is on this point that OSHA fails to adequately protect employees of all socioeconomic statuses. While the OSH Act prohibits employers from discriminating against employees who petition OSHA due to unsafe workplace conditions, the proffered definition of discrimination is limited. The 1980 U.S. Supreme Court case Whirlpool Corp. v. Marshall extends basic OSHA protections to employees who refuse to perform immediately hazardous work before there is time for an OSHA inspection. In the case, two employees at Whirlpool Corp. were formally reprimanded and forced to go home without pay because they refused to perform their maintenance duty on a protective screen, after another employee had previously fatally fallen through one. [21] The two employees had contacted an OSHA official the day before to discuss the protective screen, but there had not yet been any inspection done. The Supreme Court affirmed the preventative nature of the OSH Act, granting employees the right to refuse to work without “subsequent discrimination” by their employer if the conditions pose an “imminent” risk to their bodies. [22]
Yet the Court majority ambiguously defined discrimination as an employer treating an employee “less favorably” than other “similarly situated” workers. [23] While the Court easily found formal reprimands to be discriminatory, it explicitly declined to decide whether or not the employees were discriminated against when they did not receive pay. [24] Under this interpretation, employees are not explicitly entitled to back pay because a lack of compensation would not violate the OSH Act’s antidiscrimination provisions unless the withholding of pay itself was claimed to be a discriminatory act. [25] The Court also noted that the regulation does not empower workers to “order” their employers to eliminate dangerous conditions. [26] The language in Whirlpool, therefore, only provides a narrow right to refuse to work in the face of imminent danger, by setting a broad definition of discrimination and leaving ambivalence towards back pay. Amidst COVID-19, the threat of lost income deters workers from refusing to work in spaces with a high likelihood of virus transmission.
Thus, past applications of the OSH Act in Palmer and Whirlpool affirmed the Act’s proactive nature by providing precedent for employees to petition OSHA or refuse to work if there are not sufficient protections—in this case, if there is no vaccine mandate. [27] As demonstrated in Bridges, vaccine mandates are imperative to maintaining a safe and healthful workplace as delineated by OSHA. However, Palmer implies that workers who are unable or unwilling to work due to COVID-19 related reasons are unlikely to win monetary relief from employers under Labor Law, and instead defers such matters to OSHA. In turn, the Whirlpool decision implies that OSHA regulations do not require employers to pay back employees for the time that they refused to work due to unsafe conditions. Such limitations on the application of the OSH Act disproportionately affect racial and ethnic minorities, who are more likely to be employed in low-paying, essential jobs. [28] These jobs are performed in workplaces that discourage social distancing and have inadequate ventilation or sanitation. [29] Without a guarantee of back pay or other compensation, there is little to no incentive for these employees to stand up for themselves and their safety. The OSH Act, virtually the only legal avenue for individuals to remediate unsafe work environments, falls short in protecting workers. Future court cases need to expand OSHA’s subsequent discrimination standard to require back pay, thereby ensuring the right to refuse to work is equally financially accessible and feasible during a global pandemic.
Edited by Aidan Aguilar
Sources:
[1] OSHA, OSHA At-a-glance, U.S. Department of Labor (2014), online at https://www.osha.gov/sites/default/files/publications/3439at-a-glance.pdf (visited July 21, 2021).
[2] What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, U.S. Equal Employment Opportunity Commission (2020), online at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#intro (visited July 21, 2021).
[3] People with Certain Medical Conditions, Centers for Disease Control and Prevention (2021), online at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html#/~/text=Immunocompromised%20state%20 (visited Aug 3, 2021).
[4] Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, U.S. Department of Labor (2021), online at https://www.osha.gov/coronavirus/safework (visited July 21, 2021).
[5] Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, U.S. Equal Employment Opportunity Commission (2009), online at https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act (visited July 21, 2021).
[6] OSHA, At-a-glance.
[7] Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 73 (June 10 2002).
[8] Id at 74.
[9] Adapting a Contact Tracing Program, Centers for Disease Control and Prevention (2021), online at https://www.cdc.gov/coronavirus/2019-ncov/global-covid-19/operational-considerations-contact-tracing.html# (visited July 26, 2021).
[10] David Michaels, Occupational Safety and Health Administration (OSHA) and Worker Safety During the COVID-19 Pandemic, JAMA Network (2020), online at https://jamanetwork.com/journals/jama/fullarticle/2770890 (visited July 22, 2021).
[11] Michaeleen Doucleff, Why The Delta Variant Is Hyper-Contagious: A New Study Sheds Light, NPR (2021), online at https://www.npr.org/sections/goatsandsoda/2021/07/08/1013794996/why-the-delta-variant-is-so-contagious-a-new-study-sheds-light (visited July 26, 2021).
[12] Bridges, et al v. Houston Methodist Hospital et al, Civil Action No. H-21-1774, 1 (S.D. Tex. 2021).
[13] Id at 4.
[14] Palmer et al v Amazon.com Inc et al, 498 F. Supp. 3d 359, 365 (E.D.N.Y. 2020).
[15] Id at 367.
[16] Id at 370.
[17] Id at 370.
[18] Id at 366-367.
[19] Id at 377.
[20] Id at 373.
[21] Whirlpool Corp v. Marshall, 445 U.S. 1, 5-8 (February 26, 1980).
[22] Id at 10, 11.
[23] Id at 19.
[24] Id at 19 n.31.
[25] Larry Drapkin, “The Right to Refuse Hazardous Work after Whirlpool,” 4 Industrial Relations Law Journal 1, 39, (1980).
[26] Whirlpool Corp v. Marshall, 445 U.S. 1, 2 (February 26, 1980).
[27] Drapkin, “The Right to,” 43.
[28] Michaels, “Occupational Safety.”
[29] Id.