Excerpted From: Shefali Milczarek-Desai, Opening the Pandemic Portal to Re-imagine Paid Sick Leave for Immigrant Workers, 111 California Law Review 1171 (August, 2023) (310 Footnotes) (Full Document)


ShefaliMilczarek DesaiIn 2016, there were two major events that would determine the future of Arizona's paid sick leave policies. First, a coalition of community organizations and public interest groups placed a paid sick time law on the Arizona ballot through the state's constitutionally guaranteed right to voter initiative. This initiative asked Arizona voters to decide whether paid sick leave should be mandated. Around the same time, the University of Arizona's Workers' Rights Clinic (the Clinic) surveyed ninety, low-wage, immigrant and migrant (im/migrant) workers in Southern Arizona to assess the need for stronger workplace protections, including a paid sick leave law which did not exist in Arizona at the time. The Clinic's research revealed that im/migrant workers were underpaid and overworked, labored in unsafe workplaces, and lacked the ability to take days off when they or a family member needed medical care. Based on these findings, the resulting report recommended, among other protections, that Arizona institute a paid sick leave law. The report was circulated among lawmakers and policymakers while signatures on the paid sick leave initiative were being gathered. What resulted seemed to be a quintessential success story. The paid sick leave initiative made it onto the ballot, voters overwhelmingly supported it, and in January 2017, it became the law in the border state of Arizona.

Five years and a deadly pandemic later, the success of Arizona's paid sick leave law appears less certain given its failure to reach and benefit im/migrant workers. While this was true before the novel coronavirus hit American shores, Arizona residents paid little attention to this phenomenon. The pandemic has exacerbated the century-long collision between immigration enforcement and workers' rights. COVID-19 has rebranded low-wage im/migrant workers as essential, frontline workers upon whom the nation depends in key economic sectors from health care to food production. Yet, these much-lauded workers catch COVID-19, suffer from it, and die from it at rates far higher than the U.S. average. The ever-present threat of immigration enforcement and the lack of access to employment and labor law protections, such as paid sick leave laws, force im/migrants to report to work while sick, thereby endangering their own health and risking transmission to co-workers, customers, and the public at large.

The pandemic demonstrates that when paid sick leave laws fail to benefit im/migrant workers, this affects the health and safety of all Americans who rely on their essential, frontline labor. Yet, during the pandemic, im/migrant workers largely have not benefitted from paid sick leave, even in jurisdictions with robust paid sick time laws and during the nine months of federally mandated paid sick leave nationwide. This is because U.S. law and policy have long privileged immigration enforcement over employment and labor laws, which largely have failed to protect im/migrant workers. Even though legislators intended for these laws to cover all workers irrespective of immigration status, im/migrant workers often do not benefit from workers' rights to minimum wage, overtime pay, collective action, workplace health and safety, and anti-discrimination legislation on federal, state and local levels. A confluence of factors is to blame, not least of all the nation's restrictive immigration mandates and a multi-generational impasse at overhauling the country's badly broken immigration system.

Given this predicament, scholars and advocates have called for everything from enhanced state, local, and federal government enforcement of employment and labor laws against employers, to non-enforcement of immigration laws against im/migrant workers who file work-related claims, to legalization of work performed by im/migrants without work authorization. While these recommendations provide creative, stopgap solutions to the im/migrant workers' rights problem, they do not address the heart of the matter: the inability of U.S. law and policy and broad public opinion to separate im/migrant workers' rights from their immigration status. This Article argues that one subset of worker protections--paid sick leave laws--offers an avenue for reframing im/migrant workers' rights in a manner that detours from the typical collision between immigration enforcement and employment and labor laws. Paid sick leave has the potential to protect not only low-wage im/migrant workers, but also everyone they encounter. In this way, paid sick leave is a law based in mutual aid; when im/migrant workers benefit from paid sick time, so does the public at large. For this reason, lawmakers and policymakers should be eager to ensure that im/migrant workers can meaningfully benefit from paid sick leave laws both in the context of existing state and local paid sick time laws as well as in any future proposals for national paid sick leave legislation.

The inability of im/migrants to benefit from paid sick leave laws, which have been historically overlooked in discussions about workers' rights, takes on a new meaning when discussed within the context of a deadly global pandemic. Im/migrants make up large swaths of America's frontline, essential workforce. As a result they, like other vulnerable populations, have been more likely to contract and die from COVID-19 than their counterparts. Unsurprisingly, industries that rely heavily on im/migrant workers, such as agriculture, meatpacking, and long-term care, have been hit especially hard by the pandemic, both in terms of worker deaths and fiscal impact. This has been starkly illustrated in nursing homes, which have been the locus of nearly a third of all U.S. COVID-19 deaths. This is because aides, many of whom are im/migrants, contributed to over 40 percent of viral spread when working at multiple facilities while infected.

The pandemic presents an opportunity to analyze why and how existing paid sick leave laws fail im/migrant workers. Prior to the pandemic, paid sick leave laws existed only at state and local levels. The novel coronavirus propelled Congress to pass a temporary paid sick time law, which was the first national paid sick leave law the United States had ever seen. Im/migrant workers have not benefitted from these laws; instead, during the COVID-19 era, their lack of access to paid sick leave protections has endangered the general public as well as essential industries and supply chains. The pandemic presents a portal to re-imagine paid sick time rights in a way that will benefit not only im/migrant workers but the entire nation.

This Article is the first to scrutinize existing paid sick leave laws through the lenses of critical race, movement, and public health law theories. It argues that existing paid sick leave laws fail im/migrant workers by treating them the same as other workers even though they are treated differently by employers, the courts, and the labor hierarchy. Paid sick leave laws ignore im/migrant workers' social and economic realities at great peril because these workers' ability to access paid sick time impacts a broad range of stakeholders, in addition to the workers themselves.

Drawing from critical race, movement, and public health law frameworks, this Article is also the first to situate paid sick leave within a paradigm of mutual aid that emerges from a solidarity-based theory of public health. It argues that when paid sick leave laws are written and enforced in a manner that is informed by workers' lived experiences and contextualized within a public health conversation, employment laws can better safeguard the health and safety of im/migrant workers and the nation. Also, this proposed solution reduces tensions between immigration enforcement and workers' rights. The Article proceeds in four additional parts.

Part I provides essential background information for understanding how im/migrant workers have come to occupy an increasingly precarious position when accessing employment and labor protections. It gives a brief history of the collision between workers' rights and immigration laws and policies to describe the formation of what has been dubbed the “brown-collar workplace.” This Section also details empirically documented barriers im/migrant workers face to benefiting from employment and labor laws.

Part II introduces the current U.S. paid sick leave landscape by describing the dozens of state and local paid sick leave laws currently in existence across the country. It also discusses numerous empirical studies conducted on the efficacy of paid sick time that demonstrate paid sick time laws' benefits for workers, employers, and the public at large. Although there is limited data available to date, these studies overwhelmingly suggest that, even in jurisdictions with robust paid sick time mandates, paid sick leave laws do not benefit im/migrant workers.

Part III explains how labor protections fail im/migrant workers, proposes potential policy solutions, and identifies challenges that policymakers will face in devising solutions. This Part utilizes critical race theory's insights on the limits of formal equality to analyze how and why existing paid sick leave laws fail im/migrant workers. Part III then draws from movement law theory, which instructs lawyers and legal scholars to learn alongside marginalized and vulnerable groups. Working alongside these groups empowers lawyers to gain insights from a workers' movement that employs critical race theory's interest convergence principle and public health law's solidarity theory to prevail in securing workers' rights. One insight is that im/migrant workers are more likely to benefit from laws and policies when dominant groups benefit too. Another is that public health concerns can be resolved by acknowledging the interconnections among people and working towards mutual aid. Part III then proposes reframing paid sick leave as a legal hybrid that exists at the intersection of workplace rights and public health to benefit im/migrant workers in three ways. First, it removes im/migrant workers' access to paid sick leave from the collision between immigration enforcement and workers' rights. Second, it situates paid sick leave within a public health matrix of mutual aid that benefits multiple groups simultaneously. Third, it invites innovations that could strengthen the application and enforcement of paid sick time laws to benefit im/migrant workers. This Section also raises challenges to drafting paid sick leave laws that will embrace im/migrant workers and proposes recommendations for researchers and policymakers. A conclusion follows.

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The pandemic has shown that multiple stakeholders, including workers, employers, and the public, suffer when im/migrant workers engage in presenteeism. Existing paid sick leave laws fail to remedy this problem because they, like other workers' rights laws, ignore the lived realities of im/migrant workers as well as the interconnections among workers and everyone else. Situating paid sick time within a public health matrix removes it from the collision between immigration enforcement and workers' rights and places it within the context of mutual aid. It also opens the portal to drafting paid sick leave laws, whether on the federal, state, or local level, in a way that will encourage im/migrant workers to assert paid sick leave rights and focuses scarce agency resources on effectively remedying paid sick time violations when they occur. Without re-imagining paid sick time as more than a workers' rights issue, a nation that relies heavily on im/migrant labor will continue to suffer significant social, economic, and human losses from current and future pandemics.

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Distinguished Public Service Scholar, Associate Professor of Law; former Director of the Workers' Rights Clinic at the University of Arizona, James E. Rogers College of Law, and a daughter of immigrants.