May 20, 2020

Excluding marginalized workers from COVID-19 relief is bad policy—is it also a human rights violation?

Posted by Tara Boghosian JD ’20

The $2 trillion Coronavirus Aid, Relief, and Economic Security (CARES) Act is the most expansive COVID-19 relief package in the world, so why does it still exclude many vulnerable workers and small business owners?  

Mehrsa Baradaran begins to answer these questions in her April 9 article, “The U.S. Should Just Send Checks—But Won’t” in The Atlantic. Baradaran describes how the CARES Act excludes several vulnerable groups of individuals and businesses. Most expressly, the U.S. government’s Small Business Administration categorically refuses aid to all sex-related businesses (even legal ones, like strip clubs) and businesses run by anyone with a criminal record. In turn, these business’ employees are left out, too. Further, even though the CARES Act seems to provide for generous individual aid, lots of workers will struggle to meet the practical requirements for receiving the aid, including all undocumented immigrants. Baradaran argues that these policies are rooted in the longstanding American belief that the poor are inherently undeserving and must prove their moral uprightness in order to receive aid. And, as Baradaran notes, shaping economic policy around this belief is not only cruel but counterproductive. Being generous with aid during the crisis would do more to keep the economy afloat.  

What is also clear, but not discussed by the article, is that in addition to being bad policy, these exclusions also raise human rights concerns. The international treaty on economic, social and cultural rights provides for the right to work in Articles 6 and 7, which can be fulfilled in part by governments putting in place social protection systems that prevent unemployment. This right is not contingent on the type of work that a person does. In addition, Article 9 of the treaty recognizes the right of everyone to social security, which the treaty’s monitoring body has interpreted to include non-contributory unemployment insurance. That body, the Committee on Economic, Social and Cultural Rights, has also specified that these benefits must be both accessible to all workers—including part-time, casual, seasonal, self-employed, undocumented, and informal economy workers—and adequate to cover their basic needs. Finally, the treaty states that individuals’ enjoyment of economic and social rights should improve progressively, so governments are also expected to increase rather than decrease access to social security over time.  

Although the United States has not ratified the international treaty on economic, social and cultural rights, the socio-economic dimensions of the COVID-19 crisis demonstrate the enduring relevance of that covenant to all countries. The U.S. COVID-19 relief plan potentially runs afoul of its principles. Social security is not available to all workers when certain workers are expressly left out and when those left out are among the most marginalized in the workforce—for example, people with criminal records and sex workers who are already often excluded from the regular job market. Nor does individual unemployment aid fulfill the treaty’s accessibility standard when many low-income, informal, and migrant workers cannot meet the requirement of filing a tax return, which itself requires many forms of documentation.  

As a complement to the recommendations of the Committee on Economic, Social and Cultural Rights, the International Labor Organization recommends that governments create an “integrated policy framework,” which, among other things, entails establishing floors for social protection, extending social security coverage, and increasing income security. Leaving significant groups ineligible for aid altogether and others facing barriers to access it actively undermines these goals.  

This is one in a series of blog posts authored by International Human Rights Clinic students who have focused on workers’ rights during the pandemic. View the introduction to the series here.

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