Opening the Pandemic Portal to Re-Imagine Paid Sick Leave for Immigrant Workers

Abstract

The COVID-19 pandemic has spotlighted the crisis low-wage immigrant and migrant (im/migrant) workers face when caught in the century-long collision between immigration enforcement and workers’ rights. Im/migrant workers toil in key industries, from health care to food production, that many now associate with laudable buzzwords such as “frontline” and “essential.” But these industries conceal jobs that pay little, endanger workers’ health and safety, and have high rates of legal violations by employers. Im/migrant workers usually do not benefit from employment and labor law protections, including paid sick leave. This has proven deadly during the pandemic. When im/migrants show up to work ill, they endanger not only themselves but risk transmission to co-workers, customers, patients, and the public at large. This has been starkly illustrated in nursing homes, which rely heavily on im/migrant labor and have been the locus of nearly one third of all coronavirus deaths. The pandemic presents an opportunity to analyze why and how existing paid sick leave laws fail im/migrant workers. It is also a portal to re-imagine paid sick time in a way that will benefit im/migrant workers, and by extension, a nation facing labor shortages and high worker turnover as demand for goods and services rises.

This Article is the first to scrutinize paid sick leave laws through the lenses of critical race, movement, and health law theories. It argues that existing paid sick leave laws fail im/migrant workers because they ignore these workers’ social and economic situations and singularly focus on workers’ rights rather than collective well-being. Drawing from critical race, movement, and health law frameworks, this Article situates paid sick leave within a public health matrix based on mutual aid. It argues that when paid sick leave laws are drafted and enforced in a manner informed by workers’ lived experiences and contextualized within a broader public health conversation, employment and labor protections can better safeguard im/migrant workers and the health of the nation. Additionally, the proposed solution will reduce tensions between immigration enforcement and workers’ rights.