Written by Emma Scott, FLPC Clinical Instructor
Over the weekend, the Center for Disease Control (CDC) released new guidelines encouraging everyone to wear cloth face coverings out in public. The guidance emphasizes the coverings’ utility in settings where social distancing is challenging, particularly grocery stores.
These updated guidelines follow several weeks of outcry from workers in essential services, particularly the food sector, over their employers’ inadequate efforts to keep employees safe. Grocery store workers continue stocking shelves and ringing up groceries while food-service workers prepare meals, and food-delivery workers venture out to deliver these meals to the safety of your home. Of the many lessons we’re learning through this pandemic, one is clear: we rely on these essential food system workers to feed our families, and their health and well-being must be protected.
Employers should start by responding to the simplest, and most obvious, of their employees’ demands: provide protective equipment and cleaning supplies so workers are safe on the job. Not only is this a moral imperative with respect to the individual worker, but also, on a societal level, these safeguards decrease the chance of inadvertent transmission to other members of the public and preserve the integrity of the essential workforce upon which we all depend.
The CDC’s guidelines provide a starting point for these work policies. Employers should be providing, at a minimum, non-medical-grade face coverings, gloves, hand sanitizer and/or accessible hand-washing facilities, additional (compensated) time between work activities for washing hands, and a clean, disinfected work environment (particularly following a known exposure). To minimize inconsistencies, employers should adopt clear policies with employee risk reduction as the primary goal. Employers should also provide these protective tools free of any charge to employees.
Beyond protective gear, we must reckon with the fact that we’ve collectively failed to support the workers who keep this country running. As a growing chorus of observers have pointed out, the same workers—e.g., food retail employees and food service workers—who (too often) have been denied a $15 minimum wage are those now deemed essential to the country’s survival. Most of these workers still lack access to paid sick leave, even under the Families First Coronavirus Response Act, despite the fact that their risk of exposure and contact with the public is higher than those in other industries. Many can’t even take advantage of a sick leave policy unless diagnosed with COVID-19 or placed under mandatory quarantine.
Moreover, when the government says to shelter at home, shouldn’t these essential food-system workers receive hazard pay for reporting to work? Delivery workers face an even grimmer reality; where possible, companies classify these drivers as independent contractors, cutting off access to basic worker protections.
Another group of employees continues showing up to work, their labor less visible but their contribution no less essential: agricultural workers. Though their jobs don’t entail frequent contact with the public, agricultural workers face serious exposure risks. Adequate social distancing is nearly impossible for these workers, who largely work in crews, travel to and from worksites in groups, and live in overcrowded housing. The situation is particularly harrowing for those employed through the temporary foreign agricultural worker visa program (H-2A program), who depend on their employer for these arrangements. Sparse field sanitation facilities further exacerbates risks to all agricultural workers, as does a notorious lack of access to adequate healthcare and paid sick leave. These kinds of protections, as well as health insurance and some public benefits, are even less attainable for undocumented workers, estimated to comprise more than half of the agricultural labor force.
These strained conditions threaten worker health, and, as a result, producer viability and the nation’s fresh food supply. Recognizing the threat, some producers have reported taking new measures—e.g., having groceries delivered to workers’ homes—to decrease chances for an outbreak amongst their crews. Employer-provided protective gear and additional sanitation facilities benefit workers and producers alike and should be supplied. Producers should also provide their employees with paid leave opportunities and additional training for coronavirus-related safety.
The pandemic’s stark revelation of how much we rely on stable access to a fresh food supply, should trigger an overhaul of the policies governing agricultural workers. Farmworker wages and working conditions have trailed far behind other industries as most labor, health, and safety laws continue to exempt agriculture from their ambit. We must broaden these laws to cover agricultural workers without exception. To ease the burden of such expansion on small- and mid-sized farms, we could consider enacting additional federal support for increased payrolls. The newly introduced Payroll Protection Program offers one model for achieving this type of goal.
The pandemic also spotlights our reliance on undocumented workers to keep the sector running. Even though the H-2A program is still operating (though, reportedly, not very well), the fluctuating situation has thrown the wisdom of relying on a guestworker program for essential labor in the food supply into serious doubt. An alternative would be to provide a pathway to citizenship for undocumented workers, allowing thousands to come out of the shadows and continue contributing to U.S. society, particularly the food sector, without fear of deportation. A bi-partisan version of such a program, which would specifically target farmworkers, passed the House at the end of last year and now sits with the Senate.
As this virus further exposes the interconnectedness of our collective resilience in crisis, living wages, paid sick leave policies, safe workplaces, and a generous safety net must be the bare minimum we guarantee all workers in the United States, regardless of immigration status. We hope to see such additional protections enacted in the next aid package, not only for the duration of the pandemic, but for the long term as well.
Food Law & Policy, Commentary
A grounding legal education in the Food Law and Policy Clinic
May 18, 2023