How State and Local Governments Can Support Safe Workplaces and Protect Public Health During the Coronavirus Crisis
By David Madland, Center for American Progress Action Fund
In recent weeks, scores of essential workers across the country—from meatpackers and warehouse workers to transit employees and grocery clerks—have gone on strike to demand safer working conditions and higher wages that reflect the hazards facing them during the coronavirus pandemic. With employers too often ignoring their pleas, many essential workers have felt compelled to take direct action to seek change. As states begin to reopen their economies, even more workers face potentially unsafe working conditions that threaten to expose them and others to the novel coronavirus that causes COVID-19. This has created both a need and an opportunity for state and local governments to take actions to protect public health by supporting workers.
A number of measures are necessary to ensure that workers can safely return to work, including occupational safety standards that cover all workers. Ideally, the federal government would lead the way, but unfortunately, it has largely abdicated its responsibilities, making the actions of state and local governments especially important.
States must ensure that workers are able to socially distance and that they have sufficient personal protective equipment, access to testing, and follow-up contact tracing. As the Center for American Progress called for in a recent column, states should also ensure that essential workers have access to high-quality child care and that all workers have paid family and medical leave that they can use to care for not only themselves but also their families. They should also have access to affordable health care in the event that they get sick. In addition, as detailed in a recent report by the National Employment Law Project (NELP), states should issue occupational safety standards that address airborne infectious diseases and cover all workers; clarify that workers can receive unemployment insurance if they quit their job due to unsafe working conditions; and ensure that workers who contract COVID-19 are presumed to have an occupational disease and thus can access workers’ compensation.
But one of the most important things states can do to protect public health is to ensure that workers have a voice in setting and enforcing public health standards, strengthen worker power, and support workers who are striking or joining together in other ways for mutual aid and protection. In exercising their emergency powers to reopen economies, governors and mayors would be wise to empower workers if they want to achieve results. State governments, as well as many local governments, can take a number of actions to involve workers and strengthen their power to promote safe working conditions and protect public health during the pandemic:
- Create workers’ boards and other safety bodies to set industrywide standards.
- Promote worksite safety through worker safety inspectors or committees.
- Strengthen government enforcement of workplace safety standards.
- Provide striking workers with access to unemployment insurance.
- Make government contracts contingent on labor peace agreements.
- Allow public sector workers to join unions and bargain collectively.
Workers have important insights into whether workplaces are safe, and they deserve to have a strong voice in helping shape the working conditions that affect their lives. While legislated standards are critical to setting a floor, worker voice and power is essential to ensuring these standards actually meet the needs of workers and the public and are properly implemented and enforced. Indeed, research shows that unions are critical to improving workplace safety and for ensuring that safety protections are actually followed.
Taking steps to strengthen workers’ voices will not only safeguard workers, but it is also key to protecting the public from the continued spread of COVID-19. Worker actions and protections are critical to preventing the spread of infection through the food supply, parcel delivery, and the health care system. In addition, many workplaces include significant numbers of consumers as well as workers. To put it bluntly, there is virtually no way government can provide the level of granular detail necessary to institute effective safety standards for every industry and workplace, as well as ensure that these standards are implemented and enforced, without involving and empowering workers. This is especially true given the urgent time frame of the coronavirus pandemic and subsequent reopening.
State and local government must lead because the federal government has failed on many levels. Since the beginning of the COVID-19 pandemic, the Trump administration has failed to secure adequate protective equipment, has refused to issue an airborne infectious disease standard, and has largely abdicated responsibility in enforcing workplace safety laws. The federal government also has not provided adequate financial support to state and local governments whose budgets have been undone by COVID-19. And for decades, federal policymakers have refused to modernize labor law so that workers can freely and fairly join unions and bargain collectively. Further complicating the issue, federal law often preempts many actions that state and local governments could take to support unions and strengthen worker power.
The goal for state and local policymakers should be to ensure that workers and their representatives have a seat at the table to influence the development and implementation of safety standards.
Create workers’ boards or other bodies to set industrywide safety standards
Safety standards will need to be adapted to various industries and should reflect sectorwide consultations with firms and workers. A number of states have establishedadvisory groups to create plans for reopening economies, and some states have already released industry-specific guidance for employers. It’s essential that these reopening committees include equal representation from business and workers—including both employees and independent contractors.
State and local policymakers should also use legislation to create workers’ boards, safety standards boards, or other governmental bodies that bring together representatives of workers, employers, and the public to set minimum standards for jobs in particular regions and sectors. While workers’ boards typically address sectorwide minimum compensation rates, policymakers could expand board mandates during the pandemic to include not only safety standards but also things such as hazard pay. The Seattle Domestic Workers Standards Board is an existing example of this approach: It includes a broad mandate to address a range of workplace issues, including training on “workplace safety standards.” Proposed workers’ board legislation in Oregon would instruct the board to offer recommendations regarding “improvements to working conditions, including work schedules and workplace standards relating to safety.” Boards developing industry-specific safety standards are especially important for workers who are particularly vulnerable to exposure, such as caregiving and essential workers, as well as workers with high levels of public interaction such as food service and retail workers and workers in transportation hubs, schools, commercial buildings, or stadiums.
Promote worksite safety through worker safety inspectors or committees
State and local governments should also require the establishment of worker safety compliance officers or worker safety committees in order to communicate safety procedures established by boards and to ensure compliance with those standards at specific worksites. These workers or committees of workers would be chosen by workers, have access to workers and safety records, train colleagues on the most recent COVID-19 guidance, educate them about their rights, and promote compliance. While federal labor law preempts some state and local efforts that may promote employee representation, state governments commonly legislate on safety and health committees. Safety and health committees are clearly legal for public sector workers and have proved effective where they have been used. And as Wilma Liebman, former chair of the National Labor Relations Board, explains, private sector worker participation in safety and health committees required by state or local law is likely compliant with federal law. Indeed, the federal Occupational Safety and Health Act authorizes a worker “representative” to participate in safety inspections.
There are several ways to adapt this model to the coronavirus crisis. Nelson Lichtenstein, a labor historian at the University of California, Santa Barbara, has proposed that states mandate that employers establish a health and safety council elected by workers or chosen by a union at workplaces where workers have a collective bargaining representative. A related approach would require that each workplace choose a “Pandemic Safety Officer,” as the state of Pennsylvania has recommended in its economic reopening plan. These officers should be selected by workers—either by their union for organized workers or through direct selection for nonunion workers—akin to the long-standing proposal advanced by University of Illinois law professor Matthew W. Finkin that states pass or update laws allowing workers to select a “wage-checker” to ensure compliance with payment laws.
Strengthen government enforcement of workplace safety standards
At the same time that workers are facing heightened risks, the federal agency charged with overseeing worker health and safety is operating with the fewest number of safety inspectors in decades. This puts even more pressure on state and local labor agencies to enforce the law. States should empower workers by beefing up governmental labor inspectorates and their public health inspection capacity as well as by permitting workers to take action on their own, or even on behalf of the government, against companies that violate their rights. For example, policymakers should include strong whistleblower protections for workers who report workplace violations related to COVID-19, as NELP has recommended.
Policymakers should also more closely involve worker and community organizations—including unions, worker centers, religious organizations, and other volunteer groups—in training workers and employers on safety standards as well as in enforcement efforts, as part of a co-enforcement model. Collaborating with community worker advocates allows state and local labor agencies to obtain “real-time information about what is happening on the ground.” The approach has proved to improve compliance and has the additional benefit of providing opportunities for workers to interact with and join unions or other worker organizations.
States should also ensure that firms cannot contract out, franchise, or otherwise “fissure” work to avoid legal safety responsibilities in workplaces they influence significantly.
Finally, states confronting increasingly tight budgets due to COVID-19 should ensure that public money only goes to employers who practice high labor standards and promote public health. For example, policymakers should improve bidding processes by including a review of contractors’ records of compliance with workplace laws, requiring that persistent violators come into compliance before they are able to receive new contracts, and giving preference to the bids of employers who have a track recordof upholding high standards and complying with the law.
Provide striking workers with access to unemployment insurance
Workers should have the “right to refuse to work under dangerous conditions,” and where necessary, they should be able to strike against employers. Under current laws, when workers strike for safe working conditions, they are usually considered ineligible for unemployment insurance, but that can easily change. States set the rules for eligibility, and some, such as New York, provide unemployment benefits to striking workers, while others such as California have proposed doing so. States should also ensure that workers who refuse to cross a picket line to work are also eligible for unemployment insurance.
Promote labor peace agreements with government contractors
State and local governments have contracts with a wide range of firms and thus may be doing business with companies where workers are striking over inadequate protections. State and local governments can ensure that employers and unions follow practices that lead to productive labor relations and safe working environments by requiring labor peace agreements—agreements between contractors and labor organizations designed to limit workplace conflict—on government spending, including not just contracts but also grants, loans, and tax expenditures. Courts have allowed labor peace agreements where state and local policymakers are acting as a “market participant” rather than a regulator. Labor peace agreements can help limit labor disputes and ensure that their spending leads to the timely delivery of quality goods and services. On large projects, policymakers should also require the use of project labor agreements or community workforce agreements—which establish in advance the terms and conditions of employment, including those addressing safety and health—for a specific project that involves multiple contractors in order to prevent labor disputes during the contract, which helps ensure projects are completed on time and on budget.
Support public sector workers’ right to bargain collectively
To ensure the highest standards for safety and health, workers should be able to bargain collectively. Though federal law preempts state and local efforts to provide union and bargaining rights to most private sector workers, state and local governments can set bargaining laws for public sector workers. Policymakers, therefore, should ensure that all state and local public sector workers are awarded bargaining rights. State and local employees are often essential workers and face significant risks from COVID-19; they deserve to be able to negotiate for adequate safety standards and compensation. Relatedly, state and local governments should not unilaterally break current collective bargaining agreements under claims of emergency powers. Finally, to ensure that public sector union rights are real in the face of a hostile U.S. Supreme Court, state and local governments should also enact laws to educate new public employees about the benefits of union membership; let unions communicate with workers through modern, convenient means; modernize the collection of union dues; strengthen the power of workers at the bargaining table; and recognize the ability of unions to provide goods that workers need, such as workforce training.
The federal government has largely failed in its responsibility to protect workers during the COVID-19 pandemic. As economies begin to reopen, the threat of exposure remains. States and localities are playing a critical role in ensuring safe workplaces for both essential and nonessential workers and in protecting public health to minimize the risk of a second wave of the pandemic. In addition to establishing basic safety procedures for all worksites, state and local governments should strengthen worker power and voice in the workplace by involving worker representatives in setting and enforcing safety standards across sectors. Policymakers should also take steps to support workers who are taking collective action to secure safe workplaces. By boosting worker power, states and localities can better protect the safety of workers and the public.