CHAMPAIGN, Ill. – Congress needs to revisit outdated labor laws that could force workers to choose between their health and their jobs during pandemics, natural disasters or other life-threatening emergencies, a University of Illinois legal expert warns.
Michael LeRoy says the swine flu outbreak is the latest reminder that government has too much power to compel work in the name of public welfare during national crises, at the expense of personal freedoms.
Medical and pharmaceutical workers deemed critical if the H1N1 virus became a deadly pandemic could be ordered to work, he said, and face dismissal if they refused out of fear for their safety.
“As it stands, labor laws leave civilian workers with the almost impossible choice between risking their lives or their livelihood,” said LeRoy, a professor of law and of labor and employment relations.
LeRoy says labor laws have remained unchanged since he first sounded a warning three years ago, after researching work mandates on the heels of national emergencies such as Hurricane Katrina, the Sept. 11 terrorist attacks and anthrax scares that put workers in harm’s way.
His study examined government options when workers’ fears run counter to public needs, examining the hypothetical case of dockworkers refusing to work after a terrorist attack or disaster netted high radiation levels at a U.S. port vital to the nation’s economy.
The 2006 study found that unionized workers who resist could be ordered back to work under the Taft-Hartley Act if government shows that the work stoppage imperils national health and safety. The act brings an 80-day back-to-work injunction, long enough to weather the worst effects of a crisis, LeRoy said.
Congress also could re-enact the War Labor Disputes Act, a World War II-era law that requires civilian employees to give 30 days notice before stopping work, the study found. The president also could issue executive orders with stiff penalties, including imprisonment, to keep workers on the job.
LeRoy says constitutional protections likely would do little to shield workers who fear for their safety. He says courts have historically maintained a narrow interpretation of 13th Amendment rights against involuntary servitude, even upholding community service mandates for high school graduation.
The solution, he says, is rewriting outdated labor laws that fail to take into account the risks of pandemics, terrorism or other 21st-century problems.
“One answer might be to simply ease up on the discipline, suspending workers who refuse but not terminating them,” LeRoy said. “If workers fear for their safety, their feelings should carry the day. They shouldn’t be ordered to work and also be forced to bear the risk.”
Congress could also build a safety net to protect public welfare, such as backup plans that would bring in medically trained National Guard personnel if civilian workers stayed home during a national emergency, he said.
Employers also could help by considering applicants’ willingness to work during crises when filling critical jobs, or by adopting salary scales that increase pay during life-threatening emergencies.
LeRoy says his study shows that courts rarely side with individuals who stand in the way of the public’s welfare when considering disputes involving national emergencies.
“Without a more balanced labor policy, the nation may realize belatedly that when we allow fundamental freedoms to be sacrificed in the name of real or perceived emergencies, we invariably come to regret it,” he said. “Once freedoms are withered away, you seldom regain them.”
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