The absence of a cohesive federal strategy during the pandemic has allowed many businesses to continue operating without standard safety guidelines, endangering employee health. And with new cases of COVID-19 in the United States nearing 200,000 per day, employees’ risk of exposure will only continue to grow. Early litigation and regulatory measures have highlighted two particularly vulnerable groups in need of protection in the workplace: older employees and disabled employees. This post will first examine general deficiencies in employee health protections. Then, it will assess two primary pieces of legislation that afford legal protections to aging and disabled workers. Finally, it will explore possibilities for how to best protect American workers moving forward.
OSHA’s Failure to Protect Our Workers
Over the past several months, a grim reality has set in for millions of employees who have been ordered to return to work without pandemic protocols, personal protective equipment, or social distancing guidelines. The inaction of major employers has made clear how dangerous conditions have been. For instance, between March 1st and September 19th, Amazon reported 19,816 COVID-19 cases after warehouse workers raised concerns over conditions at distribution centers. Similarly, widespread corporate apathy in the food industry has resulted in more than 77,186 positive cases and at least 347 deaths among meatpacking, food processing, and farmworkers as of December 18th. In one of many alarming cases, employees at a pork processing facility in Iowa filed a wrongful death lawsuit against Tyson Foods in August for “fraudulent misrepresentations, gross negligence, and incorrigible, willful, and wanton disregard for worker safety.” Among the most egregious allegations in the complaint was the claim that the plant’s manager had organized a betting pool among supervisors to wager how many workers would test positive for the virus.
Where so many employers have failed to protect workers, it is traditionally the role of the Occupational Safety and Health Administration (OSHA) to respond by promulgating appropriate rules and standards. However, during the Coronavirus pandemic, the agency has failed to act substantively on employee complaints. In an interview with NPR, former senior OSHA official Deborah Berkowitz explained that, of the around 18,000 workplace safety complaints received by July, OSHA had already closed 12,000 complaints by sending a letter to employers stating “you have to investigate yourself; we don’t have any real specific requirements. And then the employer would write back, you know, we’re doing what we can. And OSHA closed the case.” Beyond recklessly dismissing cases, OSHA also allows employers to potentially underreport positive cases. According to an agency memo sent in May, “if an employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.” Even when OSHA does decide to act, the fines are often paltry so as not to be detrimental to the employer. For instance, in September OSHA fined Smithfield Foods only $13,494 for failing to maintain a safe working environment based on complaints received six months prior in April; the company made $13.2 billion in sales last year.
These inadequate procedures are not entirely surprising given that OSHA had long atrophied under the Trump administration. An April 2020 study by the National Employment Law Project found that OSHA was at its lowest number of inspectors since 1975, conducted at least 5,000 fewer average annual inspections compared to the Obama and Bush administrations, and left 42 percent of top leadership positions in the agency unfilled. However, even if OSHA hired more inspectors and filled its leadership ranks, the agency would have little to enforce due to the absence of pandemic-specific federal regulations. An infectious disease standard is imperative to OSHA’s fulfillment of its duties to protect workers. Without a specific standard, employers have no plan to follow regarding preparation, training, stockpiling necessary resources. Furthermore, whereas OSHA currently reviews violations at a standard similar to negligence under its “general duty” clause, a new agency standard would create a higher standard of review similar to strict liability, increasing the deterrent effect of possible investigations. Under the Obama Administration in 2009, OSHA began work in response to the H1N1 pandemic to create an infectious disease standard for American workplaces. However, in 2017, the agency placed the unfinished regulation on its long-term agenda, effectively tabling the issue. Further efforts by House Democrats to incorporate Emergency Temporary Standards for COVID-19 into the HEROES Act stalled in the Senate. As such, OSHA remains both understaffed and undirected, and millions of vulnerable workers remain unprotected.
OSHA’s failure to establish a specific standard and refusal to enforce key administrative provisions disproportionately impacts the most vulnerable workers. With regards to COVID-19, two groups that are at particularly increased risk for severe illness are older workers and workers with disabilities. As such, these groups bear the brunt of the consequences when the agency fails to act. We will now turn to examine what statutory protections available for older workers and disabled workers and explore administrative and judicial solutions for mitigating risk.
The ADEA and Protections for Older Americans
Older workers are the fastest growing labor pool in the United States. Back in 2014, 40 percent of workers age 55 and older were working or looking for work, and that number has only grown each year since. Unfortunately, many of these employees are subject to widespread discrimination, with 61 percent of workers over 45 reporting witnessing or experiencing age-based discrimination at work according to a 2018 AARP survey. The pandemic has exacerbated these challenges for older workers who are the highest risk group for severe illness from COVID-19. During the early outbreak peaks in April, the unemployment rate for workers 65 and older rose 2.5 times more than it did at the height of the Great Recession. As businesses reopened, older workers faced an impossible choice: risk exposure to possible infection to continue working or lose their jobs and benefits. Even businesses that avoided reopening by transitioning to telework created unique hardships for older employees. The Economic Policy Institute found that nearly three-fourths of workers age 65 and older, amounting to more than 5 million people, are unable to telecommute, shutting these employees out of secure work.
The primary federal statute designed to protect older employees is the Age Discrimination in Employment Act of 1967 (ADEA), which bars discrimination based on age for workers age 40 and older. When asserting a claim under the ADEA, the plaintiff is subject to a “but-for” standard of proof, meaning that she must prove that but for the existence of the worker’s age, the employer would not have taken adverse actions against said worker. This standard is more stringent than those of other federal anti-discrimination statutes (for instance, involving race, gender, or religion) which require only that a plaintiff prove their protected status was a “motivating factor” in the employer’s action. This higher bar helps explain why many older workers have had difficulty raising claims of age discrimination, questioning the efficacy of the ADEA. Noticing this gap, however, the House of Representatives passed a bill in January (the Protecting Older Workers Against Discrimination Act) to allow claimants to prevail by proving age was a motivating factor rather than but-for cause. However, Senate Republicans and the Trump administration opposed the bill, claiming it would flood courts with frivolous litigation. Another obstacle to effective protection under the ADEA is that the statute does not allow punitive or pain-and-suffering awards. This limitation on damages curbs the ADEA’s corrective capabilities, especially for larger corporations.
The ADEA’s enforcement and recovery challenges have left both employers and older employees in an uncertain space when confronting the new conditions of the pandemic. The Equal Employment Opportunity Commission (EEOC) has offered some guidance in clarifying ADEA rules. Firstly, it is clear that as long as older workers can still sufficiently do their jobs, employers may not exclude them from the workplace on account of their age increasing risk of COVID-19 infection. Even if the employer acts for benevolent reasons to protect the health of the employee, a strictly age-based action will violate the ADEA. For instance, employers cannot require only older workers to wear masks or social distance while exempting younger employees from those policies. Secondly, the agency explained that while the ADEA does not include a right to reasonable accommodation for older workers due to age, federal law allows employers “to provide flexibility to workers age 65 and older…even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison.” Thus, if a 65-year-old employee voluntarily chooses not to come back to work, granting that request would not be discriminatory, even if similar requests are denied for workers ages 40-64.
While EEOC guidance provides some clarity moving forward, older employees still face numerous challenges to protecting themselves under the ADEA. Despite those difficulties, age discrimination lawsuits are starting to roll in, and we will have to wait to see how courts balance the unique difficulties of the Coronavirus pandemic with the traditional but-for cause standard.
The ADA and Protections for Disabled Americans
Thirty years ago, President George H.W. Bush signed the Americans with Disabilities Act (ADA) into law, addressing “widespread, systemic, inhumane discrimination” against people with disabilities. The ADA has since taken on an increased importance in the face of the COVID-19 pandemic, which disproportionately targets individuals living with conditions such as limited mobility, intellectual disability, or chronic illness (e.g., diabetes, heart conditions, or weakened immune systems). The ADA covers three groups: 1) people who have a physical or mental impairment that substantially limits one or more major life activities; 2) people who have a history or record of such an impairment; and 3) people who are perceived by others as having such an impairment. It is also important to note that, unlike the ADEA, the ADA does require employers to provide reasonable accommodations to individuals covered by the Act. This duty has prompted confusion for workers and employers operating during the pandemic. For instance, does living in the same household as high-risk individuals warrant protection under the ADA? What counts as a reasonable accommodation?
Recent EEOC guidance clarifies that workers are not entitled to an ADA reasonable accommodation just to avoid possibly exposing an at-risk family member to COVID-19. This is true despite the ADA prohibiting discrimination by association with an individual with a disability. The agency explained that protections for association are limited to disparate treatment or harassment rather than accommodation. When accommodations are required, the EEOC has specified that telework counts as a reasonable ADA accommodation. Early cases suggest courts have been receptive to this guidance. For example, in September, the U.S. District Court for the District of Massachusetts granted a preliminary injunction in Peeples v. Clinical Support Options, Inc., holding that an employee with asthma could use telework as an accommodation during the pandemic and could not be required to return to the office.
However, pre-pandemic cases have varied widely on how receptive courts have been to work-from-home accommodations . In fact, from 2017-2018, employers won 70 percent of rulings on whether they could reject workers’ requests for telework as an ADA accommodation. But with the pressures of the pandemic as well as the increasing prevalence of telework since then, it is not unreasonable to believe courts around the country may open up more to remote technology as a reasonable accommodation. Despite mounting concerns from workers with disabilities, unions, and disability rights organizations, few lawsuits about COVID-19 disability accommodations have been filed thus far. However, this is not to say a flood of litigation is not on the horizon. Disability rights lawyers note that prior to filing a complaint with the Department of Justice or EEOC, workers requesting reasonable accommodations are first expected to negotiate with their employers, delaying lawsuits.
It is important to note that, in many cases, older employees covered by the ADEA may also have disabilities protected by the ADA. This interaction of age and disability can muddy the waters for employers who are unsure if they have the right to exclude or duty to accommodate under the overlapping statutes. The EEOC has sought to clarify, stating that employers can exclude older employees under the ADA if said employee has a medical condition that poses a “direct threat” to her health with no possible reasonable accommodation. In the coming months, it will be important to track how courts treat overlapping ADA and ADEA cases to determine how to best protect older and disabled workers moving forward.
Working towards a Healthier Workplace
Despite uncertainty on how courts will treat ADEA and ADA cases, there are immediate actions that can be taken to protect all workers during the pandemic. Given staff shortages at OSHA, an audit by the Department of Labor Office of Inspector General recommended the agency create a triage pilot to speed up the complaint screening process. Furthermore, reviving the push for OSHA to create an infectious disease standard will give vital direction to state EEOCs and employers, ensuring that workers have consistent protection. It will also allow the agency to review violations at a stricter standard similar to strict liability, rather than the negligence standard of the general duty clause. Finally, it is important that OSHA do more to protect whistleblowers who are critical to reporting employer violations. From the beginning of the pandemic through August 9, 2020, more than half of the 1,744 whistleblower retaliation complaints were dismissed without being investigated, and only two percent were investigated and resolved. To ensure that workers feel comfortable bringing complaints to OSHA, there must be a guarantee that whistleblowers will not be fired or retaliated against for exercising their legal rights.
Current action need not be limited to OSHA reforms. Professors Benjamin Sachs and Sharon Block discussed in an October session of the COVID-19 and the Law Colloquium Series the importance of union representation to protecting workers in the pandemic. Among several recommendations, Professors Sachs and Block recommend that workplaces create employee safety and health committees to discuss concerns with employers, employ a safety monitor who can provide information and confidential advice about worker safety rights, and ensure that all workers have some guaranteed digital meeting space by which to discuss common interests without employer interference. The third recommendation facilitates worker union activities and is crucial to effective OSHA response. Studies have shown that unionized workplaces are more likely to receive OSHA inspections, face greater scrutiny during said inspections, and pay higher penalties for violations than comparable nonunion establishments. Additionally, workers are much more likely to exercise their rights to complain if a union is present.
Workers in the age of COVID-19 face unprecedented challenges in protecting their own health while maintaining employment. By taking administrative action to reform the violation reporting process and encouraging courts to more broadly embrace accommodations for our most vulnerable workers, we can ensure that American workers feel secure in both their lives and livelihoods.
 See Gary D. Brunckhorst v. City of Oak Park Heights, No. 17-3238 (8th Cir. filed Feb. 4, 2019) (holding that St. Louis was allowed was permitted to deny the telework request of an employee with limited mobility); see also EEOC v. Ford Motor Co., No. 12-2484 (6th Cir. 2015) (holding that the “general rule” that “attending work on-site is essential to most jobs, especially the interactive ones” is consistent with the ADA).