Workers exposed to the coronavirus need to be able to protect themselves from illness or death without risking their employment
- Essential front-line workers don’t have access to the equipment they need to protect themselves from the coronavirus.
- This crisis shines a light on the lack of power most workers in this country have over conditions affecting their own safety and health.
- The Occupational Safety and Health Administration (OSHA) provides only limited protections to these workers.
- Workers have sought to gain protections through multiple means—union negotiations, walkouts, social media appeals, and drawing media attention to the problems.
- The government needs to do more to protect workers. Policies that empower workers in their workplaces and in the political and policy worlds are sorely needed.
This pandemic world is highlighting, for those who care to notice, that most workers in this country lack any power over workplace conditions affecting their own safety and health. Workers certainly do not have any effective right to refuse assignments that are dangerous, perhaps deadly. Workers, even front-line health care workers, do not have an effective right to protective equipment. This lack of freedom to protect one’s person reflects a weakness in worker power both in the workplace and in the policymaking realm.
For many, physical distancing during this pandemic has meant working at home, staring at our own laptop screens, sitting on our own couches, in our most comfortable clothes. Not everyone is so fortunate. The economy has not ground to a complete stop. Sectors such as food production, food preparation, and grocery sales are still operating, and workers in those sectors still go to their jobs. People are ordering online, which means that warehouse and delivery staff still report to work. Repair people still make house calls when our appliances break down. And, of course, the medical professions and supporting staff are still operating at full strength, although their exposure is greatest of all. How do these workers protect themselves and keep from becoming disease vectors for the rest of us?
The usual answer is personal protective equipment (PPE), such as gloves and masks, accompanied by hand sanitizer and disinfectant wipes. But none of these things are easy to come by these days. What do grocery workers do when they are required to work within a few feet of the customers they are checking out? And workers stocking shelves share narrow aisles with shoppers, including those who are themselves working for delivery services like Instacart. At a time when even health care workers are begging for masks on social media, these workers have little effective protection. Some wrap scarves around their heads, but these are more effective at keeping them from touching their faces or infecting others than in providing clinical protection. The situation is so dire that a recent piece in The Atlantic described grocery stores as “the coronavirus tipping point.”
And think about health care workers. In the last few days there have been press reports that a nurse in Los Angeles and a nurse in Washington, D.C., left their jobs at well-regarded hospitals because they were not provided with adequate protective equipment. On March 27, a doctor in Washington state—where the first U.S. coronavirus case was reported—was fired for social media posts not only complaining about his hospital’s inadequate protective practices but also trying to help secure more protective equipment for hospital workers. There is a real shortage of appropriate respiratory protection, and some staff have gone public with their concerns about the workaround methods their hospitals are using to cope with the shortage.
What else can these workers do? Do they have a legal right to refuse to work if they are afraid they are being exposed to the coronavirus without adequate protection? Under the Occupational Safety and Health Act, workers have a limited right to refuse to expose themselves to “a real danger of death or serious injury,” but only if they have already sought abatement of the danger from their employer and there is not enough time to obtain an OSHA inspection. Workers have somewhat more protection if they are disciplined for complaining about inadequate protections. The Washington state doctor mentioned above probably has a strong whistleblower case. But even if he chooses to pursue it, and Washington’s OSHA State Plan takes it up, it will likely take years before he sees any relief.
Workers can expect only limited help from OSHA both because of legal and resource limits and because it is not making full use of the tools it has available. OSHA has issued guidance applicable to pandemic situations, but that guidance is not enforceable. There are some general OSHA requirements protecting workers employed during a pandemic (all workers must have access to soap and water for hand-washing, and some, including most health care workers, need more extensive PPE). There is an effort in the House to direct OSHA to issue an Emergency Temporary Standard requiring protection for health care workers, but that provision has not made it into any of the three coronavirus relief laws passed so far (the American Hospital Association has tried to block its adoption), and it does not currently apply to workers in other sectors. OSHA could also take the position that employers must provide appropriate PPE and other safeguards as part of their obligation to provide employees with a work environment “free from recognized hazards,” but preliminary indications are that OSHA is not doing so. And even if OSHA did, that would still be less effective than a standard with specific provisions.
What else can be done? As with much else, workers covered by a union contract will have greater protections. The United Food and Commercial Workers union (UFCW), which represents many grocery and food processing workers, is negotiating to get its members more protections, including PPE and plexiglass shields protecting cashiers from their customers in grocery stores. Other types of mutual aid activity, including walkouts by Instacart workers, and at poultry processing plants and Amazon warehouses, are also occurring. Workers who can get press attention will likely also fare better. Hospital workers have had some success appealing for PPE through Facebook and other social media platforms. Workers in other sectors could make similar appeals. Overall, however, this crisis provides one more illustration, if one were needed, of the lack of power most workers in this country have over conditions affecting their own safety and health. Workers do not have the freedom to refuse unsafe, possibly deadly assignments. Our government policies are not protecting front-line workers—a group that includes not only health care workers but also workers in other essential industries providing food, drugs, and transportation. Policies that empower workers in their workplaces and in the political and policy worlds are sorely needed.
Ann Rosenthal was the Associate Solicitor for Occupational Safety and Health at the Department of Labor until 2017.