News & Commentary

September 18, 2020

Alexandra Butler

Alexandra Butler is a student at Harvard Law School.

As the unemployment rate remains high, workers across the nation are beginning to receive retroactive relief from the Lost Wages Assistance Program. Under the framework, states are using grants apportioned from the Federal Emergency Management Agency’s (FEMA) Disaster Relief Fund to provide $300 of unemployment benefits to qualifying workers. Qualifying workers are those whose standard weekly unemployment benefits were over $100 at the time of application. The funds, however, are limited, providing supplemental benefits for only six weeks and leaving out those who have just lost their jobs due to the September 5 cutoff date. Moreover, analysts have highlighted state structural issues that have delayed delivery of funds, as well as program qualifications that had the potential to deter workers from seeking relief under the program. 

To mitigate the impact of COVID-19 on its workers, some employers are providing additional paid leave, subsidized child care and other benefits to allow for flexibility. Yet, a recent study commissioned by the New York Times reveals that not all employees are receiving this sort of support. Namely, the report notes that both earnings and education level ultimately determine whether a person’s employer will provide these benefits. As a result, more than 75% of working parents surveyed revealed that paid leave and employer-provided, subsidized child care are not available to them. In addition to this disparity, some employers do not see these benefits as permanent, but rather as only temporary changes in light of the pandemic.   

In California, a new law will help more employees take advantage of the state’s paid family leave program. The legislation mandates that all employees who work at companies with at least five workers have access to 12 weeks of unpaid family leave. As a result, employees can use their state-provided paid leave without fear of employer reprisal. In signing the legislation, Governor Newsom stated that “[t]he COVID-19 pandemic has only further revealed the need for a family leave policy that truly serves families and workers, especially those who keep our economy running. This bill will ensure almost all Californians can access the time off they need to keep themselves and their communities healthy.”

In addition, California’s Division of Occupational Safety and Health (Cal/OSHA) is taking the first steps towards establishing statewide workplace safety standards that will better protect employees throughout the state. The Cal/OSHA board will be responsible for crafting these uniform standards. Despite the board’s decision, opponents believe that these standards will unfairly burden employers and have little to no effect on those who thus far have refused to implement safety measures.

In a new report, the U.S. Commission on Civil Rights recommends discontinuing a Fair Labor Standards Act (FLSA) employer exemption for disabled workers. Created to “prevent curtailment of opportunities for employment,” Section 14(c) of the FLSA allows employers to bypass federal minimum wage requirements for employees “who have disabilities for the work being performed.” The report and activists in this space highlight that, rather than increasing opportunity and serving as a springboard to “competitive fair wage jobs,” the program, lacking appropriate federal oversight, has allowed for and sanctioned discriminatory treatment. Though some still support the continuation of this program, the Commission writes that under 14(c), employers have “limit[ed] people with disabilities participating in the program from realizing their full potential while allowing providers and associated businesses to profit from their labor.” In terms of next steps, the Commission recommends a Congressional repeal and corresponding phase-out to ensure that there is no “retreat in Federal investments and support for employment success of persons with disabilities.” Instead, the Commission emphasizes that change should represent “a reconceptualization of the way in which the federal government can enhance the possibilities for success and growth for people with disabilities.”

As schools begin to reopen, the magazine, Health Affairs, is highlighting how these decisions could impact school employees. In its new study, the magazine examines the prevalence of COVID-19 high-risk factors among this population. Specifically, the study reveals that 42% of these employees have preexisting conditions that “increase[] [the] risk of severe COVID-19.” These statistics only underscore teacher concerns about reopening schools, some of which Leigh discussed on Wednesday. 

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