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Date: Dec. 2020
From: Fordham Urban Law Journal(Vol. 48, Issue 1)
Publisher: Fordham Urban Law Journal
Document Type: Article
Length: 24,352 words
Lexile Measure: 1810L

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"Who sees with equal eye, as God of all, A hero perish, or a sparrow fall, Atoms or systems into ruin hurl 'd, And now a bubble burst, and now a world." - An Essay on Man, Epistle 1, Alexander Pope (1734) Introduction 2 I. The COVID-19 Frontline Essential Workforce 7 A. Demographics 7 B. Union Representation 9 C. Risks of Infection 10 II. Inadequate Protections for Frontline Essential Workers 13 A. Paid Leave 13 B. PPE and Social Distancing Requirements 17 C. Emergency Standards and Agency Enforcement 21 D. Hazard Pay 27 E. Whistleblower Protections and Rights to Refuse Unsafe Work 30 F. The Role of Unions in Bargained-for and Legislated Protections 36 III. Proposed legal Reforms 39 A. An Industry-Wide or Sectoral Approach to Safety and Health Protection 40 i. Sectoral Approach Applicability for Safety and Health 41 ii. Historical and Contemporary Models 42 iii. Legal and Practical Questions 48 B. Protection for Diverse Forms of Safety and Health Protests 50 C. Protection for Immigrant Frontline Essential Workers 53 Conclusion 55


Tin Aye emigrated from a refugee camp in Thailand to Colorado in 2007 with her husband and two children. She worked at the JBS meatpacking plant in Greeley. On May 17, 2020, she died of complications from COVID-19 after being hospitalized on a ventilator for seven weeks. At the time, Aye, age 60, was the eighth JBS Greeley employee (and seventh worker) confirmed to have died from COVID-19; 316 plant workers had tested positive by May 17. (1)

Sandra Kunz, a Walmart cashier, died on April 20, 2020, from complications related to the coronavirus. Despite being 72 years old with a lung condition, Kunz continued working--her husband was injured and out of work, and the couple had bills to pay. Public health and worker safety experts recognize the register as the most dangerous place in the store. Cashiers work at arm's length from customers all day, making social distancing virtually impossible. (2)

When the COVID-19 pandemic engulfed the United States in early 2020, the concept of essential workers rose to prominence. While the category became a focus for media coverage and political debate, its definition and boundaries have been somewhat fluid. According to the Department of Homeland Security Cybersecurity and Infrastructure Security Agency Advisory Memorandum, the category covers 17 broad groups of workers, amounting to almost half of the workforce. (3) And the CISA guidance, intended to be overly broad, (4) has spawned a range of state responses as to what constitutes "essential work." (5)

These varied definitional approaches bypass an important distinction among essential workers: those who basically work from home versus those who must travel to their jobs and interact with coworkers and the public on a regular basis. The 40% of essential workers who can work from home have not been unduly vulnerable or precarious. (6) If anything, they were among the fortunate who could count on reasonably steady income in a safe workspace at a time when one-quarter of the working population...

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Gale Document Number: GALE|A651613481