Scalia fails to acknowledge COVID risk as grounds for not returning to work
PRESIDENT TRUMP’S secretary of labor, Eugene Scalia (yes, he’s the son of the late Supreme Court justice), has been on the road this month, touting the return of American workers to their jobs, even as COVID-19 cases and deaths continue to climb. In a stop on what might be called his “Whistling Past the Graveyard” tour, Scalia appeared at a Jacksonville press conference on July 9th to congratulate Florida Gov. Ron DeSantis on his leadership as that state “focuses on a safe re-opening.” Five days later Florida reported its highest daily death toll of the pandemic.
The secretary’s travels also brought him to Boston, where he announced a new federally-funded job training program for currently unemployed seniors. The training, a Department of Labor press release boasted, will help older Americans “take advantage of new employment opportunities in the marketplace” and “enable them to thrive in their communities.”
The increased risk of morbidity the pandemic presents to the elderly might cause those currently unemployed seniors to be suspicious of this attempt to steer them back into the labor market, particularly since Secretary Scalia, like many Trump appointees, is better known for obstructing his agency’s mission (“to foster, promote, and develop the welfare of the wage earners, job seekers, and retirees of the United States”) than advancing it.
During his prior career at a major corporate law firm Scalia blasted President Obama’s executive order setting a minimum hourly wage of $10.10 for workers on federal contracts, fought to narrow protections for workers covered by the Americans with Disabilities Act, and defeated a proposed safety rule that would have required employers to fix workplace conditions contributing to repetitive stress injuries, rejecting data supporting the need for the rule as “quackery” and “junk science.”
Herding the 30 million out-of-work Americans back to their jobs is, of course, a high priority for the Trump administration, which is desperate to wish this pandemic away. Secretary Scalia’s back-to-work cheerleading and grantmaking represent the “carrot” of the administration’s motivational approach to the nation’s workforce. The “stick,” on the other hand, is a guidance on unemployment insurance (UI) eligibility that the Department of Labor issued in mid-May, which aims to coerce Americans back to the workplace without regard to the state of the pandemic or the state of their health.
The guidance asserts that the pandemic is subsiding (a fact certainly not in evidence at present if it ever was) and that, consequently, “historically high levels of suitable return to work opportunities” will soon be available. The states, therefore, must take steps to ensure “integrity” in their unemployment insurance programs by terminating UI benefits to claimants who have been offered but have declined suitable work.
The guidance fails even to mention that health and safety rules are among the factors that federal unemployment insurance law requires be considered in determining the suitability of work, leaving the erroneous impression that a recalled worker must return to any job that is offered.
This omission prompted 22 members of the US Senate, including Sens. Warren and Markey, to ask Secretary Scalia to amend the guidance to make it unambiguously clear that workers cannot be forced off unemployment insurance to return to unsafe job conditions. The senators cited Centers for Disease Control and Prevention recommendations for workplace protections as suitable guidelines for determining whether an employer’s job offer provides adequate safety.
“Given that returning to work during the current public health emergency presents a serious risk to the health and safety of many workers,” they wrote, “it is crucial that the Department make clear that individuals cannot be forced to choose between keeping their income and putting their lives in danger.”
To date, the Department of Labor has not issued the requested clarification. Secretary Scalia, it seems, is content to let American workers who are recalled to jobs continue to believe they have no choice but to take them.
Margaret Monsell, a former assistant attorney general and former general counsel to the state Senate Committee on Ways and Means, is an attorney practicing in the Boston area.