Structural Discrimination and Inequities In COVID-19 Infections and Deaths

Ruqaiijah Yearby, St Louis University

Seema Mohapatra, Indiana University

 

[This blog is based on our article entitled, Systemic Racism, The Government’s Pandemic Response, and Racial Inequities in COVID-19, forthcoming in 2021 in the Emory Law Journal.]

 

Introduction

During the COVID-19 pandemic, low-income communities, low wage workers, and racial and ethnic minorities have been impacted disproportionately by COVID-19. In fact, there is some overlap between class and race in inequalities in employment and health care, that are associated with inequities in COVID-19 infections and deaths. For example, many low-wage workers, who are predominantly racial and ethnic minorities, are employed in essential jobs that lack paid sick leave and health insurance. This lack of benefits causes them to go to work even when they are sick and prevents them from receiving appropriate medical treatment. As a result, these workers have disproportionately been infected and died from COVID-19. Unequal access to employment protections and health care are a result of structural discrimination, which refers to the ways in which laws are used to advantage those in power, while disadvantaging powerless low-income communities and communities of color. 

 

Meat and Poultry Processing Workers: Poor and Unprotected by the Law

In the United States, between 6 to 8% of all the COVID-19 cases and 3 to 4% of all COVID-19 deaths are tied to meat and poultry processing plants. As of March 31, 2021, 58,312 meatpacking workers had been infected with COVID-19 and 286 had died from COVID-19. More than half of workers in the US who work in meat processing are people of color. Fifty-one-and-a-half percent of those who are considered frontline meatpacking workers are immigrants, compared with 17.0 percent of all workers in the US. In contrast, 19.1 percent of frontline meatpacking workers are white, compared to 63.5 percent of all workers. Furthermore, 45% of frontline meatpacking workers are low-income. Meat and poultry processing workers have been deemed essential workers during the COVID-19 pandemic. Yet, they often lack paid sick leave, while meat and poultry trade associations and corporations have made record profits. 

 

In the US, the federal government enacted several economic relief bills that provided paid sick leave, including the Coronavirus Aid, Relief, and Economic Security Act (CARES Act).  However, the CARES Act left out meat and poultry processing workers because it only applied to businesses with less than 500 workers, and most meat and poultry producers employ more than 500 workers. In fact, JBS employs 3,000 workers at one plant, but has not provided the workers with paid sick leave or covered payments for COVID-19 testing. Additionally, because many meat and poultry workers are undocumented immigrants, the CARES Act does not cover them. Thus, the laws disadvantage the workers, while advantaging powerful companies who do not have to pay works for sick leave. Many of these workers also cannot afford to take time off from work because of punitive attendance policies.

 

Before the COVID-19 pandemic, meat and poultry processing companies’ standard attendance policies were punitive. Companies issued points for workers that missed work; and workers that accumulated too many points were fired. These policies have persisted throughout the pandemic as JBS and Tyson actively penalizedworkers for taking time off, even for illness. 

 

Specifically, Tyson and JBS meat and poultry processing workers are required to go to work even if they are experiencing symptoms of COVID-19 or are awaiting test results. This was confirmed by JBS SpokespersonNikki Richardson, who noted that “points were not assessed against team members for absences due to documented illness.”

 

Excused absences for COVID-19 are only given if a worker has physician documentation of a positive COVID-19 test, otherwise the worker is accessed points. This attendance policy is associated with increased rates of COVID-19 infections. Due to the fear of being assessed points, many workers cannot access testing, so they go to work sick. In part due to these attendance policies, meat and poultry processing companies were able to continue production and increase profits, while workers continued to be infected and die. 

 

Tyson announced a net income of $692 million in 2020 up from $369 million in 2019, and expects a revenue of $42 billion in 2020 as a result of increased production. To date, over 12,523 Tyson workers have been infected with COVID-19. Tyson is being sued in Iowa for a COVID-19 outbreak for requiring workers, including those transferred from other facilities with COVID-19 outbreaks, to work long hours in cramped condition, and ignoring letters from county officials asking Tyson to close the facility “to ensure the safety and well-being of Tyson’s valuable employees and our community.” Yet, Tyson is not alone. 

 

Meat processor JBS reported $581.2 million in net profits in the third quarter of 2020 beating analyst’s forecasts. At the end of 2020, JBS reported a boost in net revenue by 32% for 2020 as compared to net revenue in 2019. A majority of the profit, 87%, was made in the fourth quarter of 2020 and came from meat exports from the US to China. JBS was fined $15,615 due to six worker deaths and 290 worker COVID-19 infections in its Greeley, Colorado plant tied to an outbreak that began in April 2020 and was not resolved until October 2020, compared to the $21.4 million fine levied against BP after an explosion killed fifteen workers. JBS has challenged the fine, even as they enforced attendance policies that penalized workers for staying at home when they were sick at the Greeley plant. 

 

Specifically, the attendance policy at the Greeley plant allowed for 6 points for absences before firing, which was less than the 7.5 points allowed before the pandemic. Workers could only recoup points by getting physician documentation of a positive COVID-19 test and calling an English-only attendance hotline. However, many workers do not speak English or have a physician to write the note. Thus, many workers continued to work while they are sick in large part because they could not obtain physician documentation of a COVID-19 infection, increasing the spread of the disease throughout the plant.  A new outbreak of COVID-19 infections at the JBS Greeley, Colorado plant began in November 2020 with 20 new infections. Currently, the law does not prohibit attendance policies that benefit companies and harm workers. This has been exacerbated by lack of equal access to testing, treatment, and vaccines for low-income communities and communities of color.

 

Low-Income Communities and Communities of Conor: At Risk of Infection, But Lacking Access to Testing, Treatment, and Vaccines

Research studies show that US health care institutions have closed hospitals in low-income communities and communities of color to relocate in more affluent communities, which has disproportionately harmed low-income communities and communities of color. Decisions to close hospitals in low-income communities and communities of color often failed to consider the need for the equal distribution of health care facilities among all communities, leaving these vulnerable communities without access to health care and provider services. The governments’ decision to use hospitals as COVID-19 testing and treatment sites, while closing clinics and other community based health care facilities was seemingly class and race “neutral.” Nevertheless, the closed health care facilities were disproportionately located in predominately low-income communities and communities of color, limiting these communities’ equal access to coronavirus testing and treatment during the pandemic. 

 

Although preventable, similar inequities have occurred with COVID-19 vaccinations, with Black and Latino individuals being vaccinated at much lower rates than white people. In the St. Louis region, where the first person to die from COVID-19 was a Black nurse, data shows that 71% of those vaccinated were white people, while only 8% Black people were vaccinated. This is also true in Chicago, where Black people make up 30% of the population, 60% of all the COVID-19 case, but only 19% of those that have been vaccinated. Such a result was preventable had there been a government response that proactively worked to prevent these inequities.

 

Yet, some states, like Texas, discouraged efforts by some counties to focus on vulnerable zip codes. Texas Governor Abbott threatened pulling Dallas’ vaccine allocation when county officials indicated they were planning to target areas of the county with high minority populations. As a result, county officials reversed course from that plan, leaving these communities without equal access to vaccines. President Biden set up a federally sponsored vaccine site in those vulnerable areas in Dallas as a response to address these inequities. However, as of March 2021, Texas is still trailing behind other states in terms of both vaccination rates and equity.

 

What Can Be Done

The disparate conditions discussed above are examples that demonstrate how laws and policies are hurting low-income communities and communities of color. These examples of structural discrimination will continue to contribute to inequities in infection and death from COVID-19, unless laws and policies are changed. There are numerous ways law can provide support to address the needs of low-income communities and communities of color. 

  

Provide Paid Sick Leave and Disallow Punitive Attendance Policies

Essential workers need paid sick leave so they do not go to work while showing symptoms of COVID-19 to earn much needed income. Additionally, federal, state, and local governments must ensure that workers are not penalized for staying home while sick, which just encourages sick workers to go to work and potentially expose others. If the federal government deems certain workers as essential during this pandemic, those workers need to know that they have paid sick leave if they fall ill due to the coronavirus. Some states have expanded requirements for paid sick leave, due to the pandemic. Cities, such as Oakland, California, arerequiring that employers provide paid sick leave to essential workers during the pandemic. However, comprehensive paid sick leave should be required and supported at a federal level. Furthermore, the government should prohibited punitive attendance policies that require sick workers to come to work is a recognized hazard that is likely to cause death or serious harm.

  

Provide Hazard Pay for Essential Workers

Low-wage essential workers need to be provided adequate hazard pay if they are going to be deemed essential workers by the federal government. Legal requirements can help ensure this support. Meat and poultry processing companies, as well as those that employ essential workers, should be required to provide workers with hazard pay, which should increase as the company’s net profit increases. Many US localities, such as Seattle, WA, Long Beach, CA, and Oakland, CA have enacted hazard pay mandates for grocery workers. While these laws have been challenged because grocery stores argue that their profit margins cannot support these payments, that is not the case for meat and poultry companies and many other companies that employ essential workers.

  

Provide Free Health Care for Low-Income Communities and Communities of Color

Although the CARES Act required private insurance companies, Medicare, and Medicaid to provide free diagnostic testing for the virus that causes COVID-19 and visits related to such testing without cost sharing, deductible payments, or prior authorization, this did not go far enough. Testing has been scarce in many parts of the country, and many sites were requiring a physician’s order to get a test. Many essential workers do not have employer-sponsored health care coverage, work in states that did not expand Medicaid under the Affordable Care Act (ACA), and cannot afford health care coverage. Additionally, many undocumented immigrants, who are essential workers, lack access to Medicaid or ACA exchanges and thus are uninsured. The CARES Act permitted states to create an option to cover COVID-19–related testing for those who are uninsured individuals with a federal match, but it did not require this support. If workers are being asked to provide essential services, the federal government needs to ensure that employers provide free and frequent COVID-19 testing. Furthermore, the federal government must provide funding for employers to cover all health care costs related to any suspected or confirmed COVID-19 infection for the worker and their family members, regardless of immigration status. This type of protection would help ensure workers seek care and protect their families.

 

Provide Equitable Access to Vaccines for Low-Income Communities and Communities of Color

There are some bright spots in some of the governmental testing and vaccine responses, which should be adopted in other states to address structural discrimination. Some governments have already begun to ensure that predominately Black and Latino communities have access to testing, such as North Carolina where they arranged for testing facilities available to Latino farmworkers. Some areas, like DC, are targeting certain zip codes with more low-income and underserved people.

 

Residents of these areas have earlier access to vaccination appointments than non-residents. New York and California tried similar approaches, but in some cases, people from those zip codes were not the ones who were able to get vaccinated. It is a delicate balance between ensuring access to vulnerable zip codes and asking for proof of residency and other tracking measures, which may dissuade both undocumented individuals and those who have had been justice-involved. 

 

Other states like Montana and Utah are prioritizing Native Americans and other racial ethnic groups who may be at an elevated risk of COVID-19 complications in Phase 1B and Phase 1C respectively. Additionally, many states are setting up hotlines to help people sign up for vaccines who may have trouble navigating online sign ups. Others are increasing vaccination clinics in underserved areas. For example, Colorado is aiming to establish vaccine clinics in areas with a high minority population. These are good efforts, but the federal government’s initial lack of attention and response to vaccinations harmed low-income communities and communities of color the most, so it must now act intentionally to address these inequities.

Looking Forward

Here, we suggest targeted legal and policy measures that should be immediately implemented to address structural discrimination and protect low-income communities and communities of color. These are vital to addressing inequities in COVID-19 infections and deaths. We note, however, that this is not a comprehensive list. To achieve true health justice for all, interventions to address the root causes of inequity, including all community conditions among them environmental and educational factors, are necessary.

 

Ruqaiijah Yearby is a full professor and member of the Center for Health Law Studies at Saint Louis University School of Law. 

Seema Mohapatra is a tenured associate professor of law and dean’s fellow at Indiana University Robert H. McKinney of Law. 

 

Suggested citation: Ruqaiijah Yearby and Seema Mohapatra, ‘Structural Discrimination and Inequities In COVID-19 Infections and Deaths’ COVID-19 Law and Human Rights Observatory Blog (15 April 2021) https://tcdlaw.blogspot.com/2021/04/structural-discrimination-and.html