Brent Orrell
Never before has the U.S. experienced such an abrupt and profound shift in economic fortunes. In the four months since the COVID-19 pandemic started, the US has gone from 3.5 percent unemployment to the worst recession since the 1930s. With trillions in aid doled out to workers and employers, we’ve begun the first halting steps toward a recovery that could be upended by new regional surges of illness. Uncertain feels like too weak a word to describe the social and economic future we’re facing.
As we noted recently, as businesses reopen and employees return to their workplaces, anxieties are high among employers and workers. Workers, like those in meat packing facilities and other agriculture and service work, fear exposure to a potentially lethal virus. Employers are understandably worried not just about losing their businesses due to shutdowns but about a possible flood of lawsuits from employees and customers with claims that their business was responsible for illness or death.
Added to the brew of anxiety and worker-employer tension is the leverage applied by states against workers to get back on the job or face the loss of unemployment benefits. It’s fair to say both sides want to get back to work, but actually getting there requires balancing the interests to ensure the safety of workers and the viability of businesses. One side simply coercing the other is a prescription for polarization and distrust during a time when shoring up cohesion in social and economic relationships is of paramount importance.
So far, unfortunately, most of the pressure seems to be exerted on behalf of employers in favor of a quick economic restart, while the health and safety of workers is in limbo. OSHA recently issued guidance for reopening businesses that include guidelines around personal protective equipment, workplace sanitation, and other measures to make workplaces safe. While the report provides clear and helpful guidance, there are no legal obligations for employers to follow it.
As a result, there is less pressure on employers to be thorough in preparing their operating environments for a safer restart. In the meantime, Congress seems stymied with safety legislation stalled in the House and GOP Senate leadership signaling they will not pass any more relief packages without provisions insulating employers from lawsuits. Whether such additional protections are necessary is very much up for debate.
All of this adds up to a skewed playing field that favors the concerns of business over those of workers. We get it, employers are ultimately the ones that provide the jobs that are needed to get the economy moving again. It’s worth restating, however, that generous unemployment benefits are not what’s really standing in the way of a return to work: it’s the fear of contracting the coronavirus, a sentiment that is shared by an overwhelming majority of the public. It will be difficult to persuade workers and the broader public that elected officials, regulators, and businesses are serious about protecting workers and customers as long as the “reopen at any price” sentiment is seen as animating the policymaking process.
As the federal government moves forward with new legislation that helps get the economy moving again, we have to remember what the economy actually is: human beings working and exchanging the products of their work with one another and not just the balance sheets of the companies that organize, channel and account for that exchange. Preserving human capital through health and safety measures is just as important, and, in the long-term perhaps more so, than simply restarting the economy. Protecting workers serves everyone’s interests moving forward.
This is a time to think creatively about solutions that can both protect workers and ensure that employers operating in good faith are not left to the tender mercies of the trial bar. Rather than providing additional legal protections for businesses, the federal government could borrow a page from the vaccine injury programs that help insure producers against accidental injuries related to their products.
Given the uncertainties of when and how any individual might contract illness, perhaps independent and impartial arbitration rather than legal proceedings might be useful in adjudicating “injury” claims. Regardless of which policies federal or state governments adopt the principle should be the same: protection for employers who make good-faith efforts to protect their workers from COVID but not for those who demonstrate negligence.
We value workers and employers, and should not choose between them. At the same time, we should not have a policy and regulatory scheme that results in the loss of irreplaceable lives – the brains and muscle that power our economy – in our effort to speed up the economic recovery.
Brent Orrell is a resident fellow at the American Enterprise Institute, and Matthew Leger is a research analyst at the American Enterprise Institute.
This article was originally published on The Hill.
Views in this article are author’s own and do not necessarily reflect CGS policy.
