The recent, limited return of indoor restaurant dining across the five boroughs marks an important milestone in New York City’s step-by-step recovery from the recession produced by emergency Covid-19 public health restrictions imposed last spring. 

But as such economic activity resumes, it is also now time for State lawmakers to enact essential, enforceable workplace health and safety measures with respect to Covid-19.  For the past six months, the absence of such substantive legislation has put workers in essential jobs or in businesses that have already reopened at unnecessary risk as they struggle to make their livings. Now, as the pace of economic activity further picks up, the lack of such workplace safety measures will jeopardize our hard-won economic and social rehabilitation. It will also risk future loss of life.
 
Since the New York “pause” began in March, the Employment Law Unit of The Legal Aid Society, in which I am a staff attorney, has sought to help workers in New York City – many of them low-income and immigrant workers who have long endured labor rights violations and workplace hazards – address unsafe working conditions specific to the Covid-19 outbreak.
 
Examples of such hazardous conditions abound. Even today, retail establishments in New York do not uniformly require customers to wear masks, leaving workers subject to infection and abuse. Workers trying to enforce safety protocols are sometimes threatened in the workplace by customers, with no support from their employers. In often poorly ventilated and small workplaces, this behavior not only violates established scientific and governmental guidelines; it is a recipe for a renewed public health catastrophe.
 
Home health aides, who care for society’s most vulnerable members, have endured an egregious lack of personal protective equipment (PPE). Other employers have also failed to provide PPE in the workplace, forcing workers to pay for their own masks and sanitizing products. This violates State labor law and also financially burdens essential workers living on often-reduced wages.
 
The result of these conditions, simply put, is that many workers are terrified and at risk. Many are concerned not only for themselves, but for those they live with and/or care for.  Many live in multi-generational households and are sometimes the sole caretakers for elderly parents or grandparents; they fear that contracting Covid-19 puts those elderly relatives in harm’s way.

Unfortunately, confusing, misleading, and sometimes completely false official information about workplace safety protections has compounded these problems. While the staff of the New York State Department of Labor (DOL) has performed heroically in getting assistance to unprecedented numbers of suddenly out-of-work New Yorkers, their agency’s on-line messages about safely returning to work are, to say the least, unhelpful.
 
New York State case law allows a person claiming unemployment insurance (and, in the current emergency, extended benefits and Pandemic Unemployment Assistance for self-employed workers and independent contractors) to refuse to return to a job, or continue working in a job, if working conditions are unsuitable. If an employer is made aware of unsafe conditions and does not remedy them, a claimant can refuse to work under those conditions and continue to qualify for or get unemployment assistance.

The DOL’s web site, however, fails to explain that these rights apply to claimants with a specific fear of Covid-19 due to unsafe work conditions. The web site offers no guidance on what steps workers should take concerning unsafe conditions, other than instructing them to report the conditions to the DOL – which has no authority to enforce any of the health and safety re-opening “guidelines” issued by the State.

Other DOL statements say that employers have no obligation to provide masks to workers who don’t interact with the public. Not only is that inconsistent with Centers for Disease Control guidance and the State’s executive orders concerning the importance of masks to prevent infection; it also misleads workers into believing that they have to pay for equipment that is necessary for their jobs. These messages could have the effect of pushing workers to accept unsafe conditions for fear of losing unemployment benefits, or to not insist on necessary protective gear, putting themselves, their co-workers, their families, and the public at risk of serious illness and even death.
 
Guidelines issued by the State for businesses that are reopening, while helpful, have no teeth and do not address the needs of workers, often in low-wage, exploitative industries. Health and safety standards must be enforceable and must explicitly prohibit interference with or retaliation against workers exercising their legal rights. Employers feel enabled to act in disregard of workers’ and the public’s safety when there are no repercussions. Penalties for employers engaging in flagrant violations of these standards are crucial to ensure compliance and protect workers and the general public.

The State Legislature needs to act. It should start by passing the NY HERO (Health and Essential Rights) bill that will soon be introduced as well as two already-introduced bills.  The NY HERO bill would require the Department of Labor to establish enforceable standards for health and safety with respect to airborne infectious diseases. 

The first of the already introduced bills would clarify unemployment insurance eligibility, consistent with established case law, for claimants who refuse to work under unsuitable conditions related to Covid-19.

The second would establish a fund to extend unemployment assistance to workers excluded from existing programs. These workers may lack work authorization or may have been unable to accrue enough earnings to qualify for assistance if they did not lose a job due to Covid-19, but nevertheless cannot find work in a devastated job market. For example, workers who were released from incarceration, including pre-trial or immigration detention shortly before the pandemic hit, had no meaningful opportunity to obtain the jobs or earnings needed to qualify for benefits. This exclusion has a severe impact on the economic survival of them and their families. It also creates a serious public health hazard. If workers have no alternative, they will accept unsafe working conditions that place them, their families and communities, and the wider public at risk.

The Federal government, specifically the Occupational Safety and Health Administration, has so far abdicated its responsibility to enact an emergency workplace standard for Covid-19. New York State needs to step up now, and fill in where the federal government has failed us.

Richard Blum is a staff attorney in the Employment Law Unit of The Legal Aid Society. This article is adapted from testimony he gave to State Senate and Assembly committees on August, 13th, 2020.

Photo courtesy by Matias Campa.