10.6092/issn.1561-8048/10807
Since the initial response to the Covid-19 labor crisis, the United States has faced a series of issues that raise questions as to the success of the initial measures taken, as well as the potential need for future legislation. Just as the United States took a piecemeal approach to shutting down, it has taken the same approach to reopening. With political pressure mounting to reopen the economy in full, parts of the U.S. are in medical crisis and many legal issues remain to be addressed.
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Christopher Elko
Italian Labour Law e-Journal
Sick leave
COVID-19 and Labour Law: U.S.
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National Reports
2020-04-15
2020-04-14
2020-04-15
2020-09-15
ILLeJ
Christopher Elko
2020/04/15
10.6092/issn.1561-8048/10807
Ohio Northern University
1561-8048
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Sick leave
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COVID-19 and Labour Law: U.S.
https://illej.unibo.it/article/download/10807/11346
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COVID-19 and Labour Law: U.S.                                                             Italian Labour Law e-Journal
Richard Bales                                                                            Special Issue 1, Vol. 13 (2020)
r-bales@onu.edu                                                            Covid-19 and Labour Law. A Global Review
                                                                                                       ISSN 1561-8048
                                                                        https://doi.org/10.6092/issn.1561-8048/10807




                       COVID-19 and Labour Law: U.S.
                              Richard Bales*

                                                       Abstract
     This article summarizes new laws in the U.S. enacted during the covid-19 pandemic to protect
     workers and address the profound economic impact the pandemic has caused. The initial U.S.
     response to the pandemic was highly fragmented, taking place primarily at the state and local
     levels. In late March two federal statutes were enacted to provide extended unemployment
     benefits, help struggling businesses, and provide sick leave. Myriad legal questions remain
     unanswered.

     Keywords: Covid-19; Labour Law; Unemployment benefits; Sick leave.




    The explosion of covid-19 in the United States in late March 2020 has caused a near-
 complete shutdown of economic activity. As of April 1, 2020, nearly 80% of Americans
 were on lockdown, with exceptions for healthcare workers, grocery store workers, delivery
 drivers, and other “critical” sectors. The impact was immediate and enormous, with 3.28
 million workers – nearly five times the previous record high – applying for unemployment
 benefits in the week ending March 211. The number of new unemployment claims doubled
 the following week2.
    The initial U.S. response to covid-19 was highly fragmented, mostly implemented at a
 state and local government level rather than a national level. Some states responded early
 and forcefully by, for example, shutting schools and imposing lockdowns; other states have
 responded late and piecemeal3.
    A particular challenge in the U.S. is the lack of both universal health care and universal
 sick leave. Before the pandemic, sick leave was available to only 71% of private-sector
 workers, and to only 31% of workers in the lowest 10% pay bracket4. Workers – especially




 *
   Professor of Law, Ohio Northern University (visiting 2018-20 at University of Akron).
 1 Eric Morath et al., Record Rise in Unemployment Claims Halts Historic Run of Job Growth, Wall St. J.
 (updated March 26, 2020).
 2 Sarah Chaney & Eric Morath, Record 6.6 Million Americans Sought Unemployment Benefits Last Week,

 Wall St. J. (Apr. 2, 2020).
 3 See, e.g., BBC News, Coronavirus: The US Governor Who Saw It Coming Early, BBC News (1 April 2020).
 4 U.S. Bureau of Labor Statistics, Higher wage workers more likely than lower wage workers to have paid leave benefits in

 2018 (August 3, 2018).
    Richard Bales                                                                 Italian Labour Law e-Journal
                                                                                 Special Issue 1, Vol. 13 (2020)
                                                                    Covid-19 and Labour Law. A Global Review
                                                                                      Section: National Reports




low-wage workers – are unlikely to self-quarantine if it means they don’t get paid5. A new
statute, described below, provides sick leave to many workers impacted by covid-19.
    At the national level, the primary response has been passage of two new statutes. The
first, the Coronavirus Aid, Relief and Economic Security Act (CARES Act)6, was signed on
March 27, 2020. The CARES Act provides displaced workers US$ 600 per week for four
months on top of their state unemployment benefits, which vary in amount by state. The
law also expands benefit eligibility to workers who typically cannot collect, including
independent contractors, the self-employed, and those who have not worked the minimum
number of hours. The law encourages employment retention by specifying that workers
who are furloughed (temporarily laid off) can collect unemployment, meaning those
employers won’t have to go through hiring and onboarding once the employer (hopefully)
re-opens.
    The CARES Act also creates several funds for loans to businesses. A $500 billion
Exchange Stabilization Fund, to be administered by the U.S. Department of Treasury,
consists of $50 billion in direct lending to the airline industry and “businesses important to
maintaining national security”, and about $450 billion in emergency loans for general
business. This direct lending requires recipients to maintain most staffing through
September 2020.
    Similarly, the emergency loan provisions set conditions for nonprofits and private
businesses with between 500 and 10,000 employees, including that they maintain staffing,
pledge not to offshore jobs, abide by collective bargaining agreements with unions, and
promise neutrality if employees seek to form a union during the loan term. The CARES
Act also provides hundreds of billions of dollars in partially forgivable loans to employers
with fewer than 500 workers, with requirements that the money be used for payroll and
other immediate needs, and without most of the conditions applied to the other loans.
    Another major national response to covid-19 has been passage of the Families First
Coronavirus Response Act7. This statute covers private employers with fewer than 500
employees and certain public employers (it assumes that large employers already provide
their employees with sick leave). It makes employees of covered employers eligible for:
         • Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of
             pay where the employee is unable to work because the employee is quarantined
             (pursuant to Federal, State, or local government order or advice of a health care
             provider), and/or experiencing COVID-19 symptoms and seeking a medical
             diagnosis; or
         • Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s
             regular rate of pay because the employee is unable to work because of a bona
             fide need to care for an individual subject to quarantine (pursuant to Federal,
             State, or local government order or advice of a health care provider), or to care


5 Xenia Schel-Adlung & Lydia Sandner, International Labour Organization, Paid Sick Leave: Incidence, Patterns
and Expenditure in Times of Crisis (2010).
6 H.R.748, S. 3548, 116th Congress (2019-2020).
7 H.R.6201 - 116th Congress (2019-2020).



https://doi.org/10.6092/issn.1561-8048/10807                                                                   2
    Richard Bales                                                           Italian Labour Law e-Journal
                                                                           Special Issue 1, Vol. 13 (2020)
                                                              Covid-19 and Labour Law. A Global Review
                                                                                Section: National Reports




              for a child (under 18 years of age) whose school or child care provider is closed
              or unavailable for reasons related to COVID-19...; and
         • Up to an additional 10 weeks of paid expanded family and medical leave at two-
              thirds the employee’s regular rate of pay where an employee, who has been
              employed for at least 30 calendar days, is unable to work due to a bona fide
              need for leave to care for a child whose school or child care provider is closed
              or unavailable for reasons related to COVID-198.
    Employers will receive tax credits to offset the costs of providing this paid leave.
    Social partners such as labor unions have not played a significant role in designing any
of these measures. However, U.S. labor unions may benefit from the current situation in
two ways. First, as described above, the CARES Act requires most employers seeking to
benefit from the statute to promise neutrality in forthcoming union elections. This is
significant because under current labor law, employers can and often do vigorously oppose
workers’ efforts to organize. Second, many low-wage workers in industries that now are
vital (e.g., health care, transportation, retail grocery) have, until now, been treated by their
employers as expendable – and treated commensurately. Labor protests and wildcate
strikes have escalated as these workers demand safety equipment and better pay – and this
may lead to more union organizing activity.
    Myriad unanswered legal questions remain. For example:
     • Does covid-19 qualify under state workers' compensation law as an occupational
         disease, which entitles some workers to medical insurance? In states where
         employers are allowed to opt out of workers' compensation, are employers liable
         for illness and loss of wages on common law negligence grounds for employees
         who contract covid-19 at work?
     • Covid-19 without lingering complications probably is not a "disability" under
         federal antidiscrimination law, but would employees disabled by other conditions
         be entitled to additional accommodation (such as temporary leave, work at home,
         the provision of masks and gloves, etc.) because of the pandemic?
     • Whether and under what circumstances will the "general duty" clause of the federal
         statute governing occupational safety and health apply under current circumstances
         to require employers to prevent significant risk?
     • Will that same stature permit employees to stop working in the face of imminent
         danger?
     • Can a public employer require employees to prove they are vaccinated, if and when
         there is a vaccination?
     • The Families First Act does not provide paid sick leave to gig-economy workers,
         which is a major limitation. Under the CARES Act, will companies such as Uber,
         for whom many gig-economy workers work, be required to pay into state



8U.S. Department of Labor, Wage and Hour Division, Families First Coronavirus Response Act: Employee
Paid Leave Rights.

https://doi.org/10.6092/issn.1561-8048/10807                                                             3
    Richard Bales                                                                  Italian Labour Law e-Journal
                                                                                  Special Issue 1, Vol. 13 (2020)
                                                                     Covid-19 and Labour Law. A Global Review
                                                                                       Section: National Reports




       unemployment compensation funds to help pay for the benefits their workers will
       receive under that statute?9
   The U.S. was slow to prepare for and respond to the health effects of the covid-19
pandemic. It has done a better job of responding to the pandemic’s dire economic
consequences. Had an ounce of such resources have been expended on prevention, much
less would be required for the cure.




Copyright © 2020 Richard Bales. This article is released under a Creative Commons
Attribution 4.0 International License




9   Richard Carlson, listserv email, original on file with author.

https://doi.org/10.6092/issn.1561-8048/10807                                                                    4
