COVID-19 Essential Workers or Sacrificial Workers?
by Linda Howard
Do Employers Have a Duty to Protect Workers From Airborne Infectious Diseases?
Healthcare workers and first responders are working on the front line to treat Coronavirus Disease 2019 (COVID-19) patients and save lives. As a nation we are falling short regarding protecting them. There is a public sentiment that employers or the government should provide these essential workers with Personal Protective Equipment (PPE) and access to rapid COVID-19 testing. The media are providing great coverage about the work that essential workers are doing and the shortage of PPE available to them. I applauded those covering these matters in the news and those saving lives.
The Overlooked Essential Workers
We are overlooking other categories of essential workers. As a nation, we are failing several groups in the workforce. Because of our failure, the more appropriate label for some populations is “sacrificial workers”. They leave their homes and go to unsafe jobs to provide Americans with "essential services.” At the same time, the Centers for Disease Control (CDC) the governors, and other public officials require or strongly urge the rest of us to shelter in place and to work from home to avoid being infected or spreading the coronavirus. What are the ethical duties, and the regulatory obligations for employers to protect their workers? When does this failure to protect become negligence that serves as the basis for personal injury and wrongful death lawsuits?
These “sacrificial workers” are the brothers, sisters, uncles, aunts, young adults and parents working in the transportation industry (the Uber, Lyft, and bus drivers), the call centers, the grocery store chains, smaller supermarkets, the fast-food restaurants, the food processing plants and the warehouses of businesses like Amazon and Walmart. Officials designate these players as "essential businesses,” yet many times the members of these workforces are "essential workers” in name only.
Often these sacrificial workers are low income African American, Latino, immigrant, and other low-income individuals. They show up to the job because they have to, but not without fear. They struggle with choosing between feeding themselves and their families and taking the risk of getting infected with a life-threatening disease and carrying it home to their loved ones. Frequently their employers do not provide them with PPE, force them to work with people showing signs of being ill that come to work because the companies have not adequately provided for sick pay, and their employers leave them in the dark about the co-workers testing positive. They are working in and taking breaks in cramped workspaces, break rooms and cafeterias that do not allow for physical distancing.
Many of these places of employment are unsafe, arguably violate state and federal laws, and make the employers ripe for being named as defendants in civil lawsuits. As for the proof that conditions are unsafe, a phrase I learned in first-year law school comes to mind- res ipsa loquitur (rayz ip-sah loh-quit-her). Res ipsa loquitur is Latin for "the thing speaks for itself." The massive number of people falling sick is a clear sign that something is wrong.
Food Processing Centers
Smithfield Foods is a large food processing plant with over 40,000 employees throughout the US and has nearly 50 facilities across the country. The Smithfield Foods meatpacking plant in Sioux Falls, S.D. has 3,700 workers, most of whom are immigrants and speak 26 unique languages. At this location 644 (17%) have tested positive for the coronavirus. Before mitigation efforts, which did not take place until around April 6, Smithfield did not provide employees with PPE or hand sanitizer and there was no social distancing on the line. The lunchrooms held 500 employees at a time. Smithfield in Sioux Falls is now one of the largest COVID-19 hotspots in the U.S., The Smithfield outbreak represents about half of all confirmed cases in South Dakota. It is now closed.
The Wisconsin Smithfield Foods plant, which employs over 1,000 workers, has over two dozen cases. In Wisconsin the employees complained that managers hide the number of infections, pressured employees to avoid quarantine, and provided no PPE or dividers. This plant also is now closed for cleaning and sanitation.
COVID-19 outbreaks forced JBS, the world’s largest meat-processing plant, to shut down some of its US plants. Four employees died of coronavirus and over 100 tested positive. Tyson Foods plant in Waterloo, Iowa was also in trouble. Iowa lawmakers filed an Occupational Safety and Health Act (OSHA) complaint against the plant in response to the complaints by employees of unsafe working conditions related to a COVID-19 outbreak. Perhaps it is stating the obvious. At these food processing facilities, something was wrong. How will we hold them accountable?
Retailers
Some of the nation’s largest retailers are also allegedly falling short in protecting their workers. Walmart is being sued by the family of Wando Evans, a worker that died from complications associated with COVID-19. According to CBS, another worker from the same store died four days after Evans. The sister of this worker stated that "[f]or weeks, my brother and his coworkers worked at Walmart without masks or gloves while thousands of customers came in every day. There was no enforced social distancing at the time and inadequate paid leave to make sure people would not work sick."
Earlier in this month workers at Amazon’s Eastvale fulfillment center in Los Angeles filed complaints with state and county regulators asking them to investigate dangerous working conditions that pose a threat to public health during the coronavirus pandemic. Three employees tested positive between late March and early April. The complaint alleged that Amazon delayed sending out notice of the infections and failed to shutdown to disinfect. They also alleged that while they encouraged employees to wash hands, bathrooms were a distance away and hand sanitizers were not available. Dozens of Amazon warehouses across the nation have now reported cases of COVID-19.
Fast Food Restaurants
Several reliable news sources have reported that fast-food restaurant employees are striking and many of these employees filed federal and state OSHA complaints alleging unsafe working conditions, claiming such things as the store pose an imminent danger to health because of the lack of gloves, soap, and hand sanitizer, that the business is not implementing physical distancing between workers and between workers and customers protocols, and that management has mishandled coronavirus cases.
Transportation
Nearly 100 transit workers have died from the coronavirus and many cities are slow to provide face masks or paid sick leave. According to the Guardian, New York City has 68 fatalities among employees of the Metropolitan Transportation Authority (MTA) and close to 2,500 MTA transit employees tested positive, and over 4,000 were in quarantine. Bus drivers have died from coronavirus in Boston; Chicago; St Louis; Detroit; Seattle; Newark and Dover, New Jersey; Richmond, Virginia; and Washington DC.
Call Centers
The New York Times reported that Charter Communications, the internet, cable TV and phone company known as Spectrum has a company policy that has required thousands of employees to work in offices and call centers rather than from home. Two hundred and thirty (230) employees at Spectrum have tested positive for COVID-19 since the pandemic hit the United States. The Times reported that “[t]he New York attorney general’s office said on Monday that it has opened an inquiry into the company because of its handling of employees during the pandemic.” Spectrum declined to comment on the inquiry.
Occupational Safety and Health Act (OSHA)
Where is OSHA in this? Is OSHA providing safety guidelines for COVID–19? Is OSHA enforcement activity present? As a compliance and ethics professional these are some questions I ask when considering the work conditions of these essential workers. This what my research unveiled.
OSHA requires employers to comply with safety and health standards and regulations promulgated by OSHA or by a state with an OSHA-approved state plan. Also, the Act’s General Duty Clause, Section 5(a)(1), requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm. The “novel coronavirus” poses novel challenges and OSHA is slow to issue specific coronavirus standards to help ensure that employers protect workers. OSHA left employers to fend for themselves to meet the safety guidelines amid the COVID-19 outbreak. Some employers did not even try, suggesting that OSHA had no authority, purporting that airborne infectious diseases where outside of the purview of OSHA, and that these regulations did not apply to COVID-19.
In early March, OSHA released a 35-page booklet entitled Guidance on Preparing Workplaces for COVID-19. It outlines steps employers could take to reduce workers’ risk of exposure to COVID-19. But the guidance is merely advisory; it creates no new legal obligations. The book begins with this statement: “This guidance is not a standard or regulation, and it creates no new legal obligations. It contains recommendations as well as descriptions of mandatory safety and health standards. The recommendations are advisory in nature . . .”
The Department of Labor website states that the following OSHA requirements apply to preventing occupational exposure to SARS-CoV-2, that causes COVID-19: (1) OSHA's Personal Protective Equipment (PPE) standards, (29 CFR 1910 Subpart I) which require using gloves, eye and face protection, and respiratory protection when job hazards warrant it and (2) the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970, 29 USC 654(a)(1), which requires employers to furnish to each worker "employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm."
According to the Washington Post, which got the records through a Freedom of Information Act request, from January through early April there were over 3,000 COVID-19 complaints filed with OSHA regarding coronavirus. That number is more than likely an under-count since it does not include complaints from 20 states that collect their own records. These complaints alleged that employees are being exposed to the novel coronavirus and that their places of employment lack safeguards to protect them. According to an OSHA April 13, 2020 memorandum, entitled Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19) "[c]omplaints received during the initial months of the outbreak describe concerns related to lack of personal protective equipment (PPE), such as respirators, gloves, and gowns.” OSHA also received complaints voicing concern about a “lack of training on appropriate standards and about possible COVID-19 illnesses in the workplace.”
OSHA Area Offices may not give these complaints priority if they follow the OSHA recommendations of the April 13th memorandum mentioned above. OSHA states in the memorandum that Area Offices should process complaints from non-healthcare and non-emergency response establishments as non-formal phone/fax," compliant. This virtually eliminated non-health care workers, such as call centers, restaurants and retailers, and transportation workers, from immediate government protection. To date, OSHA has not issued an emergency safety standard to protect workers from COVID-19 infections.
Final Thoughts
I ask my fellow compliance and ethics officers serving these entities, at a minimal, to urge their companies to comply with (regarding COVID-19) OSHA’s General Duty Clause, Section 5(a)(1), which requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm
I encourage my colleagues in the practice of law to persuade employers to mend their ways through litigation. The threat of judgments requiring them to pay for personal injuries, pain and suffering, and wrongful death is likely to incentivize compliance.
I advise employees working in unsafe conditions to speak up and consider filing OSHA complaints.
To the media, shine more light on the “other essential workers.”
We should thank all “essential workers” for their service.
Resources
OSHA gives employees the right to file complaints about workplace safety and health hazards. Further, it gives complainants the right to request that their names not be revealed to their employers. For information on how to file a complaint, visit https://www.osha.gov/workers/file_complaint.html
To submit a Freedom of Information Act request to OSHA https://www.dol.gov/general/foia/submit.