Bloomberg Law wrote yesterday about the increasing toll that the coronavirus pandemic has taken on the mental health of employees around the country. Stephanie Tilenius, the CEO of Vida Health, a digital therapy and clinician network that works with companies like Cisco, Visa, PayPal, and Boeing, has reported quantifiable increases in worker stress since mid-March. According to Tilenius, there has been 15-20% increases in “mental health and stress-related” appointments in the network from week to week as well as an estimated 50% increase in the listing of mental health issues on health insurance claims.
One area in which the mental health of workers is a particular concern is the healthcare profession. According to NPR, there are an estimated 130,000 medical residents, or doctors who have graduated medical school and are in their final years of training, who are playing significant roles in helping healthcare professionals during the pandemic. Through interviews with medical residents in New York City, Baltimore, Chicago, New Haven, Seattle, and more, the article explains that the residents are experiencing significant mental stress as they work long hours and risk their own health to treat patients affected by the coronavirus. Given the unprecedented nature of the pandemic’s effect on the healthcare system, these residents, alongside their supervisors and other medical professionals, have experienced the psychological trauma of being the only connection between the patients and their families, not knowing how to respond to countless situations, and watching significant amounts of their patients die.
The Trump Administration has announced that it plans to defer to individual agencies in their plans to “ramp back up government operations” and bring their employees back into work. Many agency union representatives have expressed concern about the safety associated with the patchwork nature of the agencies’ reopening. Steve Lenkart, the executive director of the National Federation of Federal Employees, which represents 110,000 federal employees, stated that the government should implement uniform guidance and safety guarantees. The American Federation of Government Employees, the largest federal employee union that represents 700,000 government employees, said that the government must meet six conditions before employees return to work, which includes universal testing, union bargaining, and science-based standards for workplace reopening.
Jared Bernstein, a senior fellow at the Center on Budget and Policy Priorities, wrote an op-ed in the Washington Post regarding the Labor Department’s guidance on the circumstances in which laid-off workers can receive unemployment insurance. Typically, if a laid off worker is receiving unemployment insurance and is offered a “suitable” job, the person must take the job or risk losing their benefits. Given the special circumstances of the pandemic, however, many labor lawyers have questioned how the word “suitable” should be understood if workers believe they would be at risk if they returned to the workplace.
In a memo written by the Labor Department’s Employment and Training Administration Advisory System, the Department has concluded that workers who refused to return to their jobs for safety reasons should not continue to be eligible for benefits because there are “historically high levels of suitable return to work opportunities.” The memo directed state workforce agencies to encourage employers to report workers who refuse to go back to work. As a result, unemployment offices in Georgia, Oklahoma, Texas, Tennessee, and South Carolina have already started urging employers to do so.
In the midst of the pandemic, however, there are some victories emerging for workers. The Eleventh Circuit recently ruled to protect the rights of pregnant workers in Durham v. Rural/Metro Corp. The case involved a pregnant woman, named Kimbelie Durham, that asked her employer for an accommodation to temporary light duty work as she was pregnant and advised by her doctor against lifting more than 50 pounds. Her company not only denied her request – citing a policy that stated the assignments were only given to employees who were injured on the job – but also refused to permit her to work given the medical restrictions. In response, she sued. The Pregnancy Discrimination Act of 1978 (PDA) creates a right of comparative accommodation to employees who were affected by “pregnancy, childbirth, or related medical conditions.” Though the district court granted summary judgement to Rural by concluding that Durham had failed to establish a prima facie case of discrimination under the PDA, the U.S. Court of Appeals found that she had in fact made a prima facie case based on the modified framework established in the case of Young v. United Parcel Service in 2015. The McDonnell-Douglas framework established states that a plaintiff can establish a prima facie case of pregnancy discrimination simply by showing that “she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others ‘similar in their ability or inability to work.’”
In addition, an international group of labor unions have filed a complaint with the Organization for Economic Cooperation against McDonald’s before their annual meeting regarding the “rampant” sexual harassment at their restaurants in Australia, Brazil, Chile, Colombia, France, the U.K., the U.S., and other countries. In their complaint, the organizations argue that McDonalds has failed to address sexual harassment in their stores, in violation of OECD guidelines on corporate due diligence. This is the first OECD complaint on gender-based harassment and violence. This follows a $500 million class action lawsuit filed in April that represents 5,000 women in over 100 McDonald’s stores and alleges that the fast food company has fostered systematic sexual harassment, as mentioned by commentator Maxwell Ulin last month.