Fighting vulnerable workers instead of the virus

Everyone wants to get tough on the coronavirus, but so far that has proven difficult. Unfortunately, rather than redoubling efforts in that fight, some are seeking an easier target: vulnerable low-wage workers.

Cynical politicians are threatening the workers most at risk of infection, many of whom face heightened risks of serious illness or death. Some of these threats are fraudulent, ugly bluffs. The very fact that they are being made, however, tells us something ugly about how we are responding to this crisis.

Most prominently, several Republican governors have announced plans to deny unemployment compensation to those refusing to work under conditions where they risk infection. The idea is that the recession will force workers to sacrifice their health to keep their families fed.

In fact, workers refusing to risk infection on the job should not lose eligibility for unemployment benefits. To be sure, states have rules disqualifying claimants that “voluntarily quit” their jobs, but even in normal times, state law recognizes that risks to workers’ health and safety render refusals to work anything but “voluntary.” The Montana Supreme Court warned that “an employee need not wait to be seriously injured before acting to remove himself from an unsafe working environment.”

For example, Missouri approved benefits for claimants who left a plant where untrained workers were handling dangerous chemicals in crowded conditions, releasing noxious fumes. This sounds like conditions at the factories that have become coronavirus hotspots.

Mississippi found that an oil rig operator was justified, and hence entitled to benefits, when he refused a dangerous assignment to plug an apparent blow-out in an off-shore well. Sanitation workers denied protective equipment raise similar concerns.

In addition, Sen. Mitch McConnell (R-Ky.) and administration officials have demanded that any future pandemic relief legislation shield employers from lawsuits if their workers become sick on the job. In point of fact, roughly a century ago states set up workers’ compensation systems to replace litigation over workplace illnesses and injuries. The employer is immune from negligence suits, and in return workers have a relatively simple way to claim against the employer’s insurance company when they are hurt.

Workers’ compensation is hardly a radical left-wing idea: The first such laws were enacted by Imperial Germany’s “Iron Chancellor” Otto von Bismarck. They reflect the sensible notion that compensating injured workers should be a cost of doing business just like paying wages or purchasing raw materials. It gets workers relatively rapid, if modest, compensation for their injuries while sparing employers the expense of defending lawsuits and the risk of large jury verdicts. Insurance companies encourage safe practices by charging higher premiums to employers with more injured workers.

Only in rare, extreme cases may workers sue for their injuries. Idaho, for example, allows suits where “the employer actually knew or consciously disregarded knowledge that employee injury would result from the employer’s action.”

If the proposal is simply to prevent negligence lawsuits against employers, it is about a century too late.  If the proposal is instead to prevent workers’ compensation claims for coronavirus infections, it departs radically from a century-old social compact. And if the proposal is to shield employer behavior so heinous that workers’ compensation laws allow suits, it is grotesque indeed.

Accountability for injured workers, whether through lawsuits or higher insurance premiums, gives employers incentives to avoid dangerous conditions. Removing that accountability — and allowing employers to endanger their workers’ lives without consequences — is the very antithesis of the compassion and mutual concern that we need in this crisis.

Nor can vulnerable workers look to the Occupational Safety and Health Administration for protection. Ordinarily, OSHA rules require employers to record illnesses that cause workers to miss time on the job. This helps identify hazards and correct them before more workers get sick. The Trump administration, however, announced that most employers will not have to record coronavirus illnesses. It has stalled draft guidance that would have pressed employers to follow safety practices that the Centers for Disease Control and Prevention recommends. And the Department of Labor has kept the pressure on workers to go to dangerous workplaces by narrowly interpreting the new paid sick leave legislation Congress passed.

With the federal government disengaged from worker safety, spontaneous strikes have shown that workers desperately need more leverage to force employers to adopt safety precautions. Rather than facilitating the orderly resolution of labor disputes, the president’s appointees on the National Labor Relations Board issued rules making it harder for workers to form unions and easier for employers to coerce them to drop the unions they have.

Finally, with stock prices largely stabilized but tens of millions of jobs lost, the president is seeking to shift an even greater share of governmental costs from the affluent to working people. He reportedly is insisting that any new relief legislation include a permanent cut to the already-low rate of taxation for capital gains. This will not help investors in distressed retail, hospitality, or transportation companies: They have capital losses, not taxable gains. Instead, it will further reduce the taxes of many of the same people who benefited handsomely from the 2017 tax legislation. With the super-rich paying less, a greater share of the cost of government will inevitably fall on working people.

The supposed rationale for cutting capital gains taxes is spurring investment. The same people made the same claims for the 2017 tax cut, yet instead of investing businesses spent their windfalls on stock buy-backs. Moreover, with effective interest rates near zero, capital is available to invest in any worthwhile project.

The coronavirus is a formidable foe. We cannot defeat it, or revive the economy, by abusing vulnerable workers.

David A. Super is a professor of law at Georgetown Law. He also served for several years as the general counsel for the Center on Budget and Policy Priorities. Follow him on Twitter @DavidASuper1