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Excerpted From: Mechele Dickerson, Protecting the Pandemic Essential Worker, 85 Law and Contemporary Problems 177 (2022) (80 Footnotes) (Full Document)


MecheleDickersonIn March 2020, states and cities tried to slow the spread of the Coronavirus (COVID-19) by issuing shelter-in-place or stay-at-home orders. Once the economic consequences of a total shutdown of the economy became clear, however, the federal government and states declared that certain business sectors or industries were critical. These critical businesses and industries were required (or at least allowed) to remain open. Unfortunately, when businesses told the people we now call “essential workers” to keep working, no one told businesses what they needed to do to protect those workers.

Things initially looked promising for essential workers--at least for some of them. People stood on balconies and lined streets during “clappy hours” to herald and valorize higher income doctors and nurses as they went to and from work. For a brief period, it even seemed that the lower wage employees who scrubbed hospital floors, drove patients to or admitted them to hospitals, stocked shelves in Amazon warehouses, processed meat in factories, picked vegetables on farms, and drove city buses might also be valorized. Essential workers were called heroes and some retail workers even received tips from grateful customers during the early weeks of the pandemic. Later on, many of these low wage, face-to-face (F2F) workers were harassed, assaulted, and even murdered by customers who became enraged when they tried to enforce mask or social distancing requirements put in place to keep customers and workers safe.

Low wage F2F workers largely avoided losing their jobs in the COVID-19 recession. However, the economic benefits did not outweigh the significant health risks they faced when they were required to have close and often prolonged contact with potentially infected co-workers and customers. Businesses generally refused to give them permanent wage increases or provide additional benefits like health insurance, free COVID-19 testing, or paid leave to keep them safe. In fact, though called essential, these workers were treated like they were expendable.

COVID-19's most lethal days may be over, but this will not be the last time low wage essential workers are forced to choose between their livelihood and their lives. The Delta and Omicron variants of COVID-19 and the sustained and often irrational opposition (from some Americans) to simple mask rules and vaccine mandates show the risk of another pandemic occurring. To prepare for the next pandemic, this Article urges federal and state legislative bodies and regulatory agencies to develop pandemic essential worker (PEW) rules that give essential businesses incentives to keep their workers safe.

This Article opens by briefly discussing COVID-19 essentiality declarations in Part II. Part III then describes the typical F2F essential worker: a low wage Black, Indigenous, Person of Color (BIPOC) who does not have a bachelor's degree. Part III notes that the people who can work from home (WFH) are disproportionately white and upper income and that occupationally segregated U.S. workforces posed significant health risks for low wage essential F2F workers during the pandemic. This Part stresses, however, that the social determinants of health (SDOH), not skin color or health co-morbidities, caused higher COVID-19 infection and mortality rates for BIPOC workers.

Part IV describes the limited contractual protections low wage essential F2F workers have and shows how being an at-will and non-unionized worker has always made it harder for these workers to convince businesses to implement safety protections. To ensure essential F2F workers who perform jobs that become potentially lethal because of essentiality declarations are better protected during the next pandemic, Part V urges state and federal agencies to prepare default PEW regulations that would protect workers. Businesses could adopt those rules or prepare their own PEW protection plan if they negotiate those pandemic workplace safety rules with workers or bargaining units.

Finally, because essential businesses that were allowed to remain open received competitive market advantages over non-essential businesses, Part VI concludes by arguing that they should be taxed on any excess profits they earn during a pandemic. Revenues generated from this tax should be used to pay for pandemic infrastructure--like improved data collection systems--to help close health disparity gaps, and to subsidize the costs smaller or non-essential businesses incur to implement health and safety procedures.

[. . .]

Essential workers protected us, but no one really seemed to want to protect them. They were never fairly compensated for performing tasks that kept the economy going and made it possible for people to safely WFH. Essential workers basically were told to decide whether they wanted to be safe or be paid. In the next pandemic, private businesses that benefit from being declared essential must have a duty to ensure that their workers can do their jobs without putting their health and lives at risk.

University Distinguished Teaching Professor and Arthur L. Moller Chair in Bankruptcy Law and Practice at the University of Texas at Austin School of Law.

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