By Morgan Sandhu
As the COVID-19 pandemic continues to devastate workers and families across the United States, undocumented immigrants remain particularly vulnerable. Most federal coronavirus relief has excluded undocumented immigrants, who are also generally ineligible for the pre-existing social safety net programs that so many Americans have relied upon. Further, undocumented workers are overrepresented both in industries considered “essential” and industries suffering from far higher rates of unemployment. Finally, even when undocumented workers are eligible for benefits or protected under existing government safety regulations, they may be wary of taking advantage of these protections for fear of being retaliated against by their employer, who may fire them or threaten to call ICE.
Immigrants generally are overrepresented in industries at high risk from COVID-19
As a preliminary matter, research suggests that undocumented workers are more often employed in fields classified as “essential work” and in fields that have suffered mass layoffs during the COVID-19 pandemic.
For essential workers, the pandemic has posed a terrible threat to health and safety workers are forced to put their health on the line each day. For reasons discussed below, undocumented essential workers might be at particular risk, as they often have less access to healthcare, may fear retaliation, and may be unable to appropriately force employer compliance with safety guidelines.
Undocumented workers that have been laid off face an equally bad dilemma — as discussed further below, they are ineligible for most forms of federal relief, including federal unemployment. A laid-off undocumented worker has few options for economic aid.
Undocumented workers’ (in)eligibility for Federal relief:
In general, undocumented individuals are ineligible for federal benefits. As all levels of government expanded benefits to attempt to soften the myriad economic and health blows of COVID-19, undocumented workers have been left behind.
“Ordinary” Safety Net Benefits:
Even before the pandemic, a matrix of federal programs created some social safety net. Programs such as the Supplemental Nutrition Assistance Program (SNAP), Temporary Assistance for Needy Families (TANF), and federal Medicare were never available to undocumented immigrants. So, undocumented workers and undocumented immigrants even before the pandemic were in a more vulnerable situation. Then, when coronavirus hit and millions of Americans turned to these programs to stay afloat, undocumented immigrants had nowhere to turn.
This was particularly true for undocumented workers: one of the most important benefits programs during the pandemic was unemployment insurance. Faced with mass layoffs, and few prospects for reemployment, many workers filed for and received unemployment insurance benefits. Yet once again, undocumented workers were not (and are not) eligible for unemployment insurance. One of the standard unemployment insurance requirements is that a worker be “actively available for employment”. This language has been read to exclude anyone without valid work authorization as they are not (on the government’s reading) “available” for employment. So, undocumented workers have had no access to unemployment benefits during coronavirus either.
As coronavirus and its impacts worsened, undocumented immigrants had no federal safety net to turn to. In the wake of mass layoffs, undocumented workers have no unemployment benefit and no federal benefits to help meet the barest standard of living. Even when federal, state, and local governments began to expand coronavirus relief efforts, undocumented immigrants remained left behind.
Coronavirus benefit expansion:
The CARES Act expanded unemployment benefits for many workers in a program known as Pandemic Unemployment Assistance (PUA). Although PUA expanded the categories of workers eligible for unemployment benefits and raised the amount of benefits available to many, undocumented workers were again excluded. Similarly, and also governed by the CARES Act, undocumented immigrants were ineligible to receive the Economic Impact Payments (commonly known as the stimulus checks). Undocumented workers and families have received none of the direct relief or direct benefits from the federal government.
States stepping in:
In a limited number of cases, some states and local governments attempted to step in. These stopgap measures have been vital, but remain funded at far lower levels than federal programs and provide accordingly lower benefits. They have been overwhelmed by demand and have often operated on a first-come, first-served basis, leaving many without aid. Further, programs providing government relief to undocumented individuals are relatively rare and almost always in partnership with private philanthropic efforts.
California, which relies heavily on undocumented labor especially in the agricultural sector, was the first state to step forward. The state set up a $125 million fund in partnership with private philanthropy, that provided direct relief to workers regardless of immigration statute. Connecticut, Oregon, and Illinois set up similar programs, as did cities such as Austin, Washington, D.C., and Seattle. In all of these cases, government aid has been augmented with money from private philanthropy, emphasizing the limits on state and local funding .
Despite these promising first steps, a number of challenges remain. First, the funding set aside for undocumented immigrants has been at a far lower level than that for non-immigrants. In Connecticut, the direct aid would work out to just $8.33 per person if distributed evenly. In California, and most cities, the designated aid fund ran out quite quickly. Further, even were all undocumented immigrants able to access direct aid, it is a one-time payment, similar to the stimulus checks, rather than ongoing support like unemployment insurance. Second, many states face legal and political barriers to using government funds to support undocumented workers, despite the fact that most undocumented workers pay state and local taxes. Politically, states have faced pushback for using state funding to support undocumented workers, even when a large portion of the money is coming from private philanthropy. Finally, there are logistical hurdles to distributing aid to undocumented workers; there is fear that immigrants’ personal information could subsequently be used in immigration enforcement efforts. Thus, states have frequently partnered with local community organizations, who were better situated to reach immigrant communities and protect their personal information. However, this has complicated the process of applying for and distributing funding. These challenges are not unique to state government; were the federal government, under a new administration, to try to expand benefit eligibility to include undocumented workers, they would face similar hurdles.
Fears of Retaliation
In the workplace, undocumented workers are particular likely to fear retaliation for asking for compliance with federal policies or by taking advantage of policies like expanded sick leave. For example, the Families First Coronavirus Response Act (FFCRA) required expansion of paid federal paid sick leave or expanded family and medical leave for specific reasons related to COVID-19. All employees— regardless of immigration status — are eligible under the FFCRA. Yet undocumented workers may be more wary of taking leave for fear that their employer will retaliate against them for taking leave. An employer can retaliate against an undocumented worker for complaining through any number of avenues, including by firing them or threatening to (or actually) reporting them to Immigration and Customs Enforcement (ICE).
As Professor Sharon Block helpfully explained, in general, fear of retaliation is worse during a recession or tough job market. The coronavirus pandemic created widespread unemployment, activating this fear. This fear of retaliation applies equally to reporting COVID-19 related health and safety violations, whether to a federal agency or even to a manager or boss. Fears of retaliation are particularly well-founded given OSHA’s currently dismal record on inspection and compliance. Even when whistleblower complaints are filed, they are largely going uninvestigated.
While retaliation for any of the above is illegal, undocumented workers have little recourse. Even worse, for undocumented workers, the results of retaliation can be far more severe. While a citizen may be fired, which can obviously be catastrophic, an undocumented worker faces far worse if an employer calls ICE on the worker. While the employer is acting illegally by calling ICE in retaliation, ICE is generally allowed to follow up on the employer’s report and begin deportation proceedings. Immigration proceedings are on a separate track, such that the protection promised from workplace retaliation generally cannot protect an immigrant from deportation. Beyond the devastating effects of deportation, immigration consequences themselves also now carry a steeper penalty than ever. Immigration detention centers have been, and remain, hotbeds of coronavirus, increasing the risk of being exposed to coronavirus.
For what legal protections exist for workers — regardless of immigration status — far more detailed information can be found on the National Employment Law Project’s website, which also provides advice on how to proceed with taking action in the first instance.
- Notably, employees are not required to disclose their name or immigration status when making an OSHA complaint. An organization can also file on behalf of an individual which maintains an additional layer of anonymity. Undocumented workers would be wise to file anonymously whenever possible.
In brief summary, if an employee believes they have been retaliated against, there are two key processes at the federal level and state level protections may also apply:
- File a complaint with the National Labor Relation Board:
- If a worker believes that her right to engage in protected concerted activity free from employer retaliation — which usually requires multiple employees acting together– has been violated, she can file a complaint with the NLRB.
- Such a complaint is called an unfair labor practice charge.
- Thischarge can be filed by the worker(s) or her representative(s), and must be filed within six months of the date of the violation
- File a complaint under Section 11(c) of the OSH Act.
- Section 11(c) protects most workers from retaliation if they assert their rights under the law, which includes workers who are retaliated against after complaining about a violation of their health and safety rights on the job.
- Beware that the investigative process can take a long time to resolve, and the claim must be filed within 30 days of the incident.
- The complaint can be filed online or by calling a local OSHA office at 1-800- 321-OSHA (6742).
- Some states provide additional assistance through the Office of the Attorney General. For example, Massachusetts provides an online form workers can fill out. California has explicitly prohibited immigration based retaliation through statute, providing .
However, in general, administrative proceedings such as the above only provide limited protection for undocumented workers; the processes can be slow and may not provide protection during deportation proceedings. Undocumented workers are thus rightfully wary of retaliation.
Unique risk factors:
The confluence of heightened immigration enforcement, xenophobia, and fear of how accessing benefits may make them “public charges” puts undocumented workers in an even more vulnerable position.
First, heightened immigration enforcement has created widespread mistrust about relying on federal agencies. This is particularly relevant in a federal workplace safety context, where undocumented workers are less likely to come forward and report their workplace to a federal enforcement agency for fear of exposing themselves to immigration penalties.
This mistrust also carries into healthcare provision. Undocumented individuals generally have worse healthcare coverage that the general public; it is estimated that about 7.1 million undocumented immigrants lack health insurance and are not eligible for either the Affordable Care Act’s subsidy or federal Medicare. Many immigrants relied on the emergency room for care, making the shift to telehealth and primary care providers more difficult. Even when there are resources like free testing for all uninsured individuals, fear may prevent undocumented individuals from accessing state sponsored resources. As a team of doctors wrote in the New England Journal of medicine after immigrants have experienced consistent and relentless attack from the government “[e]xpecting them to trust the government now, during the Covid-19 crisis, is naive at best.” The new public charge rule only worsens each concern.
Next, even during the best of times, federal safety requirements can be labyrinthine for workers to navigate. While some resources (such as workplace safety guidelines) are available in languages other than English, filing a complaint would generally requires English proficiency or assistance from a lawyer. Creating better access to federal safety regulation and enforcement for workers has not been a Trump Department of Labor priority.
Undocumented workers and minority communities in general are facing increased racism during the pandemic. When meatpacking plants were suffering from high COVID-19 rates, immigrants found themselves targeted and blamed by their broader communities.
Much of what comes next will hinge on whether Democrats take control of Congress. Many of the policies to provide relief require funding, which is squarely in Congress’s hands. President-elect Biden will be unable to accomplish as much here through executive order as he can in many other realms. His strongest tools will be through agency action and setting enforcement priorities, both for ICE and within the Department of Labor, as discussed below. A more robust investigation of alleged coronavirus violations will protect all workers, undocumented or not. Further, a shift in the discourse around immigrants and generally more pro-immigration policies may disrupt some of the underlying fear and distrust of government benefits in immigrant communities.
The plight of undocumented workers is uniquely tragic, but also reflects the challenges so many Americans are currently facing. Though undocumented workers and their families are at a heightened risk, the COVID-19 pandemic has generally exposed a frayed safety net. For undocumented workers, and lower-wage workers generally, the risk factors for COVID-19 are a Gordian Knot. For example, an undocumented worker who has lost his or her job is now at financial risk, which might trigger a decision to move in with extended family. That decision in turn makes it harder for the individual to adhere to public health guidelines on social distancing. Fear of community medical resources might lead to depressed levels of testing and COVID-19 detection generally, and worsening community spread. Yet the interconnectedness of such factors cannot excuse government neglect. Further, community transition remains a critical factor in the spread of COVID-19. When entire communities are at risk, something must be done to disrupt the underlying risk factors.
I would like to thank Professor Block for her insightful comments on the risks posed to undocumented workers and the current failures of labor law to address the COVID-19 Pandemic.
Morgan Sandhu graduated from Harvard Law School in May 2022.
This post was originally published on the COVID-19 and the Law blog