News & Commentary

April 14, 2020

Zachary Boullt

Zachary Boullt is a student at Harvard Law School.

34 Senate Democrats, led by Senators Charles Schumer and Ron Wyden, sent a letter on Monday, April 13, to Labor Secretary Eugene Scalia urging him to clarify and apply broadly “narrow or ambiguous” unemployment benefit distribution guidelines. The letter demands that the Labor Department make “crystal clear” that a positive test from a health care provider is not required for a diagnosis of COVID-19 due to testing shortages. The letter also states that the intent of the $2.2 trillion CARES Act was to provide pandemic benefits to workers regardless if the employer relationship was formally terminated. The Senators criticize a Labor Department guidance that schools are not considered closed in the summer, arguing that child care responsibilities should still be covered in benefits due to summer camps and child care facilities closing. They are also concerned with the narrow guidance regarding people who miss work due to inability to travel, clarification for gig workers to include independent contractors facing lost demand, a broadening of self-quarantine qualifying health risks, and collaboration with state unemployment agencies to streamline benefit reapplication. As Mackenzie discussed yesterday, the letter comes amidst a wave of criticism towards Scalia for the Labor Department’s guidelines regarding Pandemic Unemployment Assistance.

OSHA has released a new interim guidance concerning employer obligations to report cases of COVID-19. The guidance, which went into immediate effect for the duration of the health crisis, designates COVID-19 as a recordable illness that must be reported if a worker has a confirmed case, if the case is work-related under OSHA standards, and if the case involves standard OSHA reporting criteria. The guidance is distinct from cold and flu guidances, which are not recordable illnesses. Due to the difficulty of determining whether COVID-19 was contracted due to work, the guidance only enforces reporting when there is objective evidence that the diagnosis is work-related, and when the evidence is reasonably available to the employer. However, this evidentiary standard does not apply to health care, emergency response, and correctional institution workers, who have stricter reporting requirements under the guidance.

The United Food and Commercial Workers International Union is calling for additional workplace protections in food and retail sectors. The union has reported that at least 30 grocery store workers have died from COVID-19, with at least 3,000 sick. In response, the union is calling for increased provision of personal protective equipment, as well as hazard pay and increased sick leave. The union is also collaborating with Albertson’s to push for designating grocery store workers as first responders. So far, UFCW has had success in shortening store operation hours, adding sanitary protocols, and getting plexiglass partitions installed at checkout lanes for its members.

In the wake of Amazon’s dismissal of Chris Smalls and the leaked memo regarding the company’s plan to smear Smalls and the unionization campaign, Amazon is now facing backlash for another termination decision. Amazon on Friday fired Emily Cunningham and Maren Costa, two user experience design workers, who have both been publicly critical of the company’s unsafe warehouse conditions during the pandemic. The two had recently started campaigns to match donations to warehouse workers, citing a need to help them amidst their struggle for workplace protections. Amazon claims to have fired the workers for “repeatedly violating internal policies,” specifically their external communications policy, which prevents employees from publicly disparaging or misrepresenting the company. Cunningham and Costa had both been publicly critical of Amazon’s climate policies in the past.

A new development has occurred in the fight between equal pay advocates and the Trump administration regarding Obama-era gender and race pay reporting requirements. The U.S. Court of Appeals for the District of Columbia Circuit has ruled that an appeal from the EEOC and the White House Office of Management and Budget is now moot. The appeal disputed a March 2019 ruling overturning the Trump administration’s decision to stop collecting the pay data and mandating a reinstatement of the data collection. The EEOC’s pay data collection has been deemed complete as of February 10, so the appeal has been dropped. However, the lawsuit, filed by the National Women’s Law Center and the Labor Council for Latin American Advancement, will continue to be litigated, as the Trump administration is now arguing that the district court’s March 2019 ruling should be vacated.

Amidst an increase in streaming of performance art during the pandemic, groups such as the American Federation of Musicians union have been calling for increased compensation for performers featured in streamed content. The union has now refused to approve a stream without musician fees of Disney on Broadway for a Broadway Cares charity fundraiser event. The event stream intended to raise money for an emergency relief fund for entertainment workers hurt by the pandemic. This decision by American Federation of Musicians was a break during negotiations from some other unions’ positions, as the Actors’ Equity Association and SAG-AFTRA approved of the concert stream without fees. Since the AFM’s decision, the 15 musicians who performed at the concert have come forward with the president of their union Local 802 saying that they were not consulted by the AFM’s international president, Ray Hair, who announced the stream refusal over email. In a statement, the musicians approved of and requested streaming the concert without fees and continuing the charity event. Adam Krauthamer, the Local 802 union president, criticized the AFM international leadership for roadblocking the charity event.

One of the United States’ largest pork slaughterhouses closed on Sunday after over 200 of its workers tested positive for COVID-19, joining a wave of closures including a major beef processing plant in Colorado and five Canadian meat plants. The closures are causing problems for meat provider workers and farmers due to livestock surplus and rapidly filling fridge space. Amidst fears of an eventual domestic meat shortage, the federal government has begun relaxing workplace restrictions on some meat facilities so they can run at higher speeds.

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