Labor Day looked different this year. COVID-19 has changed how we work and, for some of us, where we work from. It has also highlighted the importance of workplace rights and the longstanding problem of childcare for working families.
Harvard Law Today recently corresponded with Sharon Block, executive director of HLS’s Labor and Worklife Program, and Benjamin Sachs, Kestnbaum Professor of Labor and Industry and faculty co-director of the Labor and Worklife Program, about COVID-19’s continued impact on the workplace, worker’s rights to a safe and healthy work environment, and the importance of unions in the time of social distancing and telework. The Labor and Worklife Program has addressed many of these issues and offered recommendations for empowering workers in two recent reports—Clean Slate for Worker Power: Building a Just Economy and Democracy and Worker Power and Voice in the Pandemic Response.
Harvard Law Today: As the economy reopens after COVID-19 shutdowns, what rights do employees have? And what can employees do if their workplace does not enforce those rights?
Sharon Block and Ben Sachs: All employees have a right to a safe and healthful workplace and a right to insist that those conditions be provided to them without fear of retaliation. They also have a right to form and join unions to collectively make demands about safety and health. Shamefully, these rights, like so many workplace rights, have gone largely unenforced in recent years. Because the Occupational Safety and Health Administration has only issued voluntary guidance, there is effectively no federal government enforcement of protections from workplace COVID exposure. In some states, workers have the option to turn to state government to protect them. Ultimately, workers are safest when they are able to join together to demand a safe and healthy workplace through unionization, despite a lack of federal legal protection. New research reconfirms the empirical point that the safest workplaces are unionized ones.
HLT: After showing a lot of flexibility in the spring, some employers have recently begun requiring parents working from home to prove they have childcare during business hours. How have employer expectations changed regarding parents working from home and childcare, and what rights to parents have?
Block and Sachs: The pandemic reveals long standing problems with childcare for working families. At a minimum, anyone who can’t work because they lack childcare must be entitled to unemployment insurance compensation. But the longer-term solution requires government support for adequate and safe childcare to enable our economy to function equitably. Until that kind of childcare is available to all who need it, employers should be flexible so that working families can accommodate the demands that the pandemic places on them. In any event, asking for proof of childcare—as opposed to asking for proof of successful completion of work responsibilities—may constitute evidence of unlawful caregiver discrimination.
HLT: The White House has declared teachers essential workers. What role do teachers’ unions play in determining when and how schools will reopen?
Block and Sachs: Of course teachers are essential. Just as are other workers across the economy who have done such courageous work during this pandemic. Unions provide a critical voice for workers to contribute to efforts to reopen safely during the pandemic. There have been numerous examples, throughout the country, of teachers’ unions working collaboratively with school districts to figure out the best and safest way to teach children this year.
HLT: How will COVID-19, and the prospect of long-term telework for many, continue to impact workers’ rights and protections?
Block and Sachs: It is important not to focus on telework to the exclusion of millions of workers who have returned to work already, often in unsafe and unhealthy work environments, and the millions more who have lost their jobs. These workers deserve immediate protection and a massive increase in resources from the federal government. Government protection for workers’ rights takes on even greater importance during an era of high unemployment when the risk of job loss discourages workers from asserting their own rights. Issues facing long-term teleworkers are still emerging, and there are early warning signals that there may be psychological impacts, work-family balance challenges, an increase in employer surveillance, and inconsistencies in compliance with wage and hour law. In addition, telework and social distancing makes traditional union organizing difficult, so it is critical that the law ensure workers access to online tools for organizing.
Protecting workers during the COVID-19 pandemic requires a comprehensive response from policymakers. We’ve laid out a vision for such a response in two recent reports: Clean Slate for Worker Power: Building a Just Economy and Democracy and Worker Power and Voice in the Pandemic Response.