As states lift their lockdowns, furloughed workers are being recalled. That's as it should be as the economy thaws from its deep freeze. But some of these workers are being forced to choose between their health and their income, and the U.S. Labor Department, an institution long tasked with protecting workers' safety, is pushing hard in the wrong direction, providing flawed guidance and scheming with employers to force people back to work under conditions that put them and their families at risk of catching the coronavirus.
The conflict hinges on the interpretation of the word "suitable." If a laid-off worker is receiving unemployment insurance and she is offered a "suitable" job, under business as usual, she must take it or risk losing benefits. However, "suitable" must be understood to imply a higher bar during the pandemic. Business is anything but usual. Absent adequate protections from infection, no job is suitable, and any worker who refuses to go back to that job must be able to stay on the unemployment rolls. No one should be forced to put themselves and their families at risk of illness and death to draw a paycheck.
But that's not the position of the agency that's supposed to be protecting workers. It has issued guidance that virtually ignores health risks and encourages employers to report workers who refuse job offers so their unemployment payments can be taken away. The agency is busy urging employers to snitch on "claimants that have turned down suitable work." Under its new guidance, "states are strongly encouraged to request employers to provide information when workers refuse to return to their jobs for reasons that do not support their continued eligibility for benefits." In a denial of the reality of our situation, the department's guidance expects "historically high levels of suitable return to work opportunities. As such, states must work to maintain program integrity by ensuring claimants are not continuing to claim benefits when they have been offered suitable work." Unemployment offices in Georgia, Oklahoma, Texas, Tennessee and South Carolina are actively urging employers to report on workers who refuse to go back to work.
The Labor Department's stance is indefensible based on its own rules governing this issue. In a letter to the department signed by 224 organizations, lawyers from the National Employment Law Project (whose board I chair) took it upon themselves to explain to Labor Secretary Eugene Scalia that the concept of suitable work includes any intervening changes that occurred at the workplace that increase workers' perceived health risks.
In fact, the Centers for Disease Control and Prevention, also a government agency, have provided medically based guidance on what constitutes a safe workplace, guidance the Labor Department should obviously embrace. These are all common-sense measures that have heretofore helped to control the spread of the virus, including hazard assessments, regular health checks, social distancing, face masks, proper ventilation, disinfectant application, access to hand-washing facilities and more. The CDC guidance also makes clear older workers and those who are immunocompromised should not be called back to unsafe workplaces.
Meanwhile, Senate Majority Leader Mitch McConnell, R-Ky., is trying to legislate legal immunity from lawsuits brought by workers who believe their company's negligence made them sick.
In other words, Senate Republicans and the Trump administration are trying to put workers and their families in a vise, then tighten it by taking away unemployment benefits and the legal ability to fight back against employers' actions that expose them to the virus. This affects not just any workers, but the most vulnerable ones, disproportionately women and people of color, who can't work from home and have nothing to fall back on once they lose unemployment payments.
To their credit, some states are stepping up and doing what the Labor Department should be doing on a national basis. In Colorado, the state labor department considers job offers unsuitable if "the work environment is not complying with social distancing or the guidelines of Colorado's recent safer-at-home order" or the worker "is part of a group that is more vulnerable to COVID-19 than others." As Virginia reopens, state officials acknowledged "many workers have very valid concerns" about their safety. North Carolina has posted a particularly comprehensive list of valid health concerns that would make a job offer unsuitable, thus allowing concerned workers to keep collecting benefits.
To be clear, suitable job offers exist, and the fact that the federal boost to unemployment now includes a $600 weekly plus-up through July 31 (on top of regular state benefits) means that lower-wage workers have an incentive to stay home. Every refusal must thus be adjudicated, but such reviews must be done in the context of the CDC guidelines, not those of the business-as-usual Labor Department.
What's playing out here is a microcosm of a much larger, deeply entrenched problem in our labor market: employer power over worker power and the demise of labor standards and protections. Given historically low union membership, the increased dominance of certain employers in key industries - such as retail, health care, technology and food production - and the interaction between concentrated wealth and money in politics, institutions designed to protect workers are missing in action. The goals of the Labor Department have become indistinguishable from those of the Commerce Department.
In the name of fairness and equity, we must solve these structural problems, but that's a longer-term project, one requiring very different players in positions of political power. For now, we can concentrate on a more manageable task: keeping workers from having to choose between getting the virus or going broke.
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Bernstein, chief economist to former vice president Joe Biden, is a senior fellow at the Center on Budget and Policy Priorities.