By Celine McNicholas and Margaret Poydock, Economic Policy Institute
- The Department of Labor (DOL) issued a temporary rule that will exempt 96% of applicable firms from providing paid sick and paid family and medical leave to their staff. It could also exempt 9 million health care workers and 4.4 million first responders from receiving paid leave.
- DOL issued guidance that narrows the eligibility of workers to receive Pandemic Unemployment Assistance (PUA). For example, gig workers must be “forced to suspend operations” by a government quarantine in order to receive PUA benefits, rather than voluntarily quarantining themselves.
- The Centers for Disease Control (CDC) issued guidance that will jeopardize the health and safety of workers. The CDC now allows essential workers to continue to work even if they may have been exposed to the coronavirus—as long as they appear to be asymptomatic and the employer implements additional precautions.
- The Occupational Health and Safety Administration (OSHA) advises that certain businesses are not required to investigate or record workplace-related coronavirus cases. Not only does this guidance make workers less safe, it will likely make the public health crisis worse as employers will not be required to record virus-related illness as officials work to track these cases.
In the last three weeks, an unprecedented 17 million workers applied for unemployment insurance (UI), while millions more risk their lives to provide essential services. To mitigate the health and economic impacts of the coronavirus pandemic, Congress has passed a series of bills aimed at providing relief and recovery measures. The Families First Coronavirus Relief Act (FFRCA) and the CARES Act included critical provisions to assist workers impacted by the pandemic; chief among those are an expansion of Unemployment Insurance (UI) and access to paid leave. However, rather than working to implement these relief and recovery bills efficiently and effectively, the Trump administration has instead looked for ways to narrow and weaken the worker protections included in the legislation.
At a moment when workers desperately need access to paid leave and unemployment insurance benefits, the Department of Labor (DOL) has issued guidance that leaves fewer workers with these critical protections. Further, the Centers for Disease Control (CDC) reversed guidance for essential workers exposed to the coronavirus—allowing asymptomatic workers to continue working and potentially exposing others to the virus. Finally, the Occupational Safety and Health Administration (OSHA) recently announced that employers will not be required to record and investigate COVID-19-related illnesses, as they are required to do with other illnesses and injuries, to determine if a worker’s illness is work-related. This not only leaves workers with fewer protections, it will likely make the public health crisis worse as employers will not be required to record virus-related illness as officials work to track these cases.
The Department of Labor excludes millions of workers from paid leave provisions
Under the Families First Coronavirus Relief Act, workers employed by businesses with less than 500 employees can receive up to two weeks of paid sick leave and 10 weeks of paid family and medical leave for coronavirus-related illnesses or closures. On April 6, DOL issued a temporary rule providing clarification on the applicability of the paid leave provisions. However, the rule drastically narrows workers’ eligibility for the benefits. For instance, the rule requires an employer to have work for the employee for the employee to have access to paid leave benefits. Therefore, if a business closes due to lack of business or because of a stay-at-home order by a public official, those workers would not be eligible for paid leave benefits. Individuals who are furloughed from a business that remains open are not eligible for benefits either. The rule advises individuals in these cases to apply for UI.
DOL’s temporary rule also excludes millions of workers from receiving paid leave benefits. Under FFCRA, health care providers and first responders can be excluded from the paid leave protections. In the temporary rule, the definition of health care providers and first responders is so expansive that it excludes workers who manufacture medical equipment and janitors at hospitals. In the Department’s cost estimate of the rule, 9 million health care workers and 4.4 million first responders could be excluded from FFCRA’s paid leave provisions. The temporary rule also gives the secretary of labor the authority to exempt employers with fewer than 50 employees from paid leave provisions if the employer deems compliance would “jeopardize the viability of the business as a going concern.” According the Department’s own estimates, this would exempt 96% of firms covered by the law.
The Department of Labor drastically narrows Pandemic Unemployment Assistance eligibility
The CARES Act provided critical relief to workers who have become unemployed due to the coronavirus pandemic. The legislation provided expanded unemployment insurance through the Pandemic Unemployment Assistance (PUA) program. This provides independent contractors, gig workers, and those who are self-employed the ability to apply for UI—something they were not eligible prior to the PUA program. However, recently issued guidance by the Department of Labor has significantly narrowed the framework and duration for those receiving benefits under the PUA program. For instance, gig workers must be “forced to suspend operations” in order to receive PUA benefits. This means those who are unable to work due to voluntary quarantine cannot receive benefits; rather, they must be unable to work due to a mandated quarantine issued by public officials. The Department’s guidance also advises states to approve PUA benefits only for the duration they are needed. For instance, in cases of school closures, PUA benefits may be limited to just the duration of the school year, despite parents having continued child care responsibilities once the school year is over.
Agencies tasked with protecting workers are jeopardizing the health and safety of essential workers
Last week, the CDC and OSHA issued guidance that endangers the health and safety of essential workers. At the start of the pandemic, the CDC advised workers who were exposed to a confirmed or suspected case of COVID-19 to self-quarantine for two weeks before returning to work. However, the CDC now allows essential workers to continue to work even if they may have been exposed to the coronavirus—as long as they appear to be asymptomatic and the employer implements additional precautions.
The Occupational Safety and Health Administration, the federal agency tasked with assuring “safe and healthful working conditions for working men and women,” issued interim guidance on recordkeeping enforcement during the pandemic. Under the guidance, OSHA advises that certain businesses are not required to investigate or record workplace-related coronavirus cases. Not only does this guidance make workers less safe, it will likely make the public health crisis worse as employers will not be required to record virus-related illness as officials work to track these cases.
In the midst of a global pandemic, federal agencies should enforce worker protections—not narrowing or rescinding them all together. However, the Trump administration is doing just that by issuing guidance that exempts workers from critical relief and recovery measures and makes workers providing essential services less safe. More than 33 U.S. senators have called for the Department of Labor to issue additional guidance on the PUA program to ensure workers receive the benefits they are owed. Now Congress must demand the Department of Labor and the Centers for Disease Control reevaluate their guidance that puts workers’ health, safety, and economic security at risk. Otherwise, millions more workers impacted by the coronavirus pandemic will not receive the workplace protections they deserve.