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UA Law Prof: The other front line: Immigrant workers, nursing homes and COVID-19
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UA Law Prof: The other front line: Immigrant workers, nursing homes and COVID-19

The following is the opinion and analysis of the writer:

Salma (not her real name) works for a local business that runs several elder-care facilities in Tucson. She spends up to 12 hours a day bathing, dressing, feeding and medicating residents as well as cooking and cleaning for the homes. After the coronavirus pandemic hit the United States, she asked her employer for paid sick time to care for her ill son.

Salma’s employer did what many employers do when low-wage immigrant workers ask for paid sick time — it threatened to fire her and report her to ICE. When Salma said she had legal status, her employer changed tactics and said it would report her to the IRS because no payroll deductions were made from her paycheck even though it was the employer’s obligation to pay those taxes. Although Salma knows that the law is on her side, she feels scared and trapped.

Amidst a global pandemic that has left a whopping 36.5 million (and counting) Americans filing for unemployment, Salma can’t risk being fired. As her family’s sole wage earner, she must put food on the table for her children and keep a roof over their heads. This means Salma will continue working for her employer even if it does not provide paid sick time as required by state and federal laws.

To make matters worse, Salma’s employer has not implemented recommended COVID-19 workplace safety measures. Now, Salma also worries about contracting and/or spreading COVID-19 among the virus’s most vulnerable population — the elderly.

Salma is situated at one of the deadliest intersections of America’s coronavirus pandemic: low-wage immigrant workers and elder care. Alarmingly, her story is all too common. Currently, immigrants make up 25-30% of the workforce in the nursing home industry, which was ground zero for the COVID-19 outbreak in this country. Long-term care facilities continue to be a hotbed of contagion, resulting in at least 28,000 deaths across the nation.

The elder-care industry is not alone in its reliance on low-wage immigrant labor. According to estimates, over 6 million immigrants — both documented and undocumented — are essential American workers on the front lines of this pandemic.

They make up large swaths of health care, cleaning, agricultural and food industries (including at meat processing plants that have experienced mass closures due to thousands of infected workers). Like Salma, many of these workers cannot access paid leave and workplace safety protections at a time when they — and the rest of us — are at risk of contracting and dying from a deadly virus.

Several converging phenomena have led to this fraught situation.

First, immigrant workers are afraid to assert legal rights. Laws that require workers to be paid for time missed from work when sick — like Arizona’s earned paid sick time law and the new federal emergency sick time law — apply to all workers regardless of immigration status.

The same goes for occupational safety and health laws. But many employers, especially those who pay workers “off the books,” retaliate against workers who request paid sick time or workplace safety measures.

This is intimidating even to documented immigrants since a boss’s threats to call ICE can result in immigration enforcement against family members. An estimated 16 million people in American live with at least one undocumented person. Even when workers are not concerned about immigration enforcement they worry about being terminated, which would spell economic disaster.

Second, employers who violate workers’ rights rarely are held accountable for doing so. All labor and employment laws contain enforcement and anti-retaliation provisions.

Many state and federal agencies tasked with investigating and fining employers, however, have been woefully understaffed and underfunded for years. This lack of resources has been cited as one reason why the federal Department of Labor has yet to promulgate legally binding, COVID-19 specific, safety regulations for workplaces. For example, although the Department’s Occupational Safety and Health Administration just released an alert to keep nursing homes and long-term care facilities safe during COVID-19, these self-styled “safety tips” are unenforceable and do not carry legal weight.

Finally, if low-wage immigrant workers who muster the courage to ask for sick leave and safe workplaces are terminated, they bump into a third obstacle: the difficulty in accessing economic aid while out of work. If workers cannot provide proof of work authorization during three different time periods, they cannot apply for unemployment insurance benefits. Even if workers have the requisite work authorization needed to apply for unemployment, they must jump through several byzantine hoops in many states that have made it more difficult for workers to obtain unemployment benefits. This means that even qualified workers face long (virtual) lines and outdated systems that cannot process claims for the generous benefits provided under the recently passed federal CARES Act.

These hurdles are nothing new for low-wage immigrant workers. What COVID-19 reveals is that this is not an “immigrant” problem — it is an “all of us” problem. Without expansion and enforcement of laws that ensure worker health, safety and economic survival, immigrants like Salma will be forced to show up to work even after being exposed to or falling ill from the virus; thereby putting themselves and America’s most vulnerable at risk.

Shefali Milczarek-Desai is an assistant clinical professor and directs the Workers’ Rights Clinic at the University of Arizona College of Law.

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