System Letdown Highlights and Executive Summary

System Letdown: Worker Safety, Harm and Compensation in the Age of Covid-19

Highlights and Executive Summary

No government agency has tracked worker deaths and infections caused by COVID transmission on the job.

HARM

·      During the pandemic’s first year, the United States had 50 million frontline and essential workers. However, many employers did not deem worker health and safety either essential or critical, ignoring evidence that workplaces with indoor environments, poorly ventilated spaces, crowded conditions and settings with individuals known to be infected (e.g., health care) were at especially high risk of COVID-19 exposure.

·      Countless workplaces were rife with lax or non-existent safety practices, turning them into breeding grounds for transmission and outbreaks that sickened and killed employees who were largely low income, disproportionately people of color and had no choice but to work in person. These employers included retail stores, warehouses, health care settings including nursing homes and meatpacking factories.

·      Weak workplace safety protocols coupled with the emergence of more highly transmissible variants Delta and Omicron have compounded the dangers to employee health and safety.

NON-EXISTENT GOVERNMENT OVERSIGHT

·      Almost every worker and employer falls under the jurisdiction of the Occupational Health and Safety Administration (OSHA), which is supposed to ensure worker safety. But from the beginning of the pandemic, OSHA abdicated its mandate.

·      OSHA failed to issue national COVID-specific binding safety regulations despite calls from labor unions and Congress to do so.

·      During the pandemic, OSHA eliminated any COVID-related record-keeping requirements for employers. It failed to fill important agency positions, allowed the number of inspectors to fall to the lowest level in 45 years as inspections dramatically declined, issued paltry fines even for the worst violators and failed to protect whistleblowers.

COMPENSATION

The Civil Justice System

·      As soon as the pandemic began, corporate lobbyists pushed state and federal lawmakers to provide companies with legal immunity when workers were exposed to COVID on the job and became sick or died, arguing without any evidence that a “wave of lawsuits” was coming.

·      The proposals for liability shields, some of which were extremely broad, were harmful and unsafe, removing the best financial incentive that businesses have to protect workers and consumers.

·      While immunity efforts ultimately failed at the federal level, many state lawmakers enacted liability shields for negligent businesses. Many laws have expired, but a significant number are still in effect. 

·      Statistics show that a “wave of lawsuits” based on COVID exposure never materialized. That has been true around the country, whether or not a state enacted a liability shield. The reason is that state tort law already places significant obstacles in the way of those bringing negligence suits.

·      When workers did try to go to court, their cases often were thrown out due to preemption by both federal law (OSHA) and state workers’ compensation laws — usually the exclusive remedy for workers harmed in the workplace.

Workers Compensation

·      Before the pandemic, workers’ compensation systems around the country had been already rife with problems, making it difficult for workers to obtain adequate compensation, and in many cases, any benefits at all.

·      As workers around the U.S. became sick or died from COVID infections that occurred on the job, employers and the insurance industry began aggressive lobbying and media efforts aimed at reducing their responsibility for compensating workers.

·      The pandemic ended up as a windfall for the insurance industry. Any claims paid have been dramatically offset by a huge decrease in non-COVID claims due to shutdowns, workforce reductions and the switch to remote work. 

·      As to those who did seek COVID-related benefits under state workers’ comp laws, their claims were often denied. In some states and in some dangerous professions, a large majority of claims have been denied.

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