Each year, state and local governments collectively receive and spend billions in federal funds, which accounted for 40.5% of all state spending in 2021, to provide important services to the public. Federal law and regulation establish some restrictions on the use of federal grants to varying degrees, but state lawmakers have considerable power to leverage federal funds in support of the public services that guarantee all families the opportunity to thrive.
This publication offers a blueprint to state legislators for a values-based approach to managing federal funds from the planning, policymaking, and implementation stages. By working together with advocates and communities, state lawmakers can ensure that we have the resources to deliver quality schools, affordable healthcare, and public services that make communities stronger.
No one should be forced to choose between providing care for their loved ones and keeping the paying job that they need to survive. Prohibiting employment discrimination against family caregivers promotes economic security, health, and equity by ensuring employees can meet all of their obligations.
What Is Family Caregiver Discrimination?
Family caregiver (or family responsibilities) discrimination occurs when parents and those who care for their elderly or disabled family members suffer adverse employment actions due to an employer bias that caregiving responsibilities make workers unreliable, uncommitted, and less valuable as employees—regardless of actual job performance. These assumptions can lead to lower wages, lack of advancement, harassment, and job loss. Employment discrimination against workers with family caregiving responsibilities is common and has devastating economic and health consequences.
Family responsibilities discrimination prevents caregivers from providing adequate care to their family members and can negatively impact an employee’s health.
The income of mothers is critical for most American families, but bias against mothers is the strongest form of gender bias against women and is largely responsible for the gender pay gap.
Workers who care for disabled or elderly family members also face harmful bias. One in every six Americans provides care for a family member over 50, and 82% of Americans who care for both an elderly person and a minor child are also employed.
While most Americans will care for a family member during their working life, women, LGBTQ+ folks, and people of color are the most likely to be driven into poverty as a result.
What Laws Currently Protect Family Caregivers from Discrimination?
Four states (Alaska, Delaware, Minnesota, and New York) and over 200 local jurisdictions around the country explicitly prohibit discrimination based on parental or caregiver status—covering almost a third of the American workforce.
In states where family caregivers are not explicitly protected, employees facing discrimination must instead rely on a complicated and incomplete patchwork of state and federal laws. Laws prohibiting discrimination based on sex, pregnancy, disability, and race, or retaliation for taking/requesting leave can protect caregivers in certain situations, but many are not covered, leaving caregivers with no legal rights. And even when rights do exist, the interplay of anti-discrimination laws and caregiver bias is widely misunderstood by employers and courts. Too many workers fall through the cracks.
What Are the Benefits of Caregiver Anti-Discrimination Laws?
Statutes prohibiting discrimination based on family caregiver status help to ensure workers are treated based on their job performance, instead of bias. This reform has the power to promote economic, health, and gender equity by ensuring that common life events, like becoming a parent or tending to a sick relative, don’t cause families to fall into poverty, and they are critical for women’s economic advancement and closing the wage gap. These laws may also help to improve caregiver mental health and to ensure children, people with disabilities, and the elderly are well taken care of.
Caregiver anti-discrimination laws also have the power to help employers avoid lawsuits. Because discrimination against family caregivers can cause employers to run afoul of laws that prohibit other forms of discrimination (e.g., on the basis of sex, pregnancy, and disability), lawsuits brought by family caregivers for violations of these other laws have been on the rise. However, laws that explicitly prohibit caregiver discrimination provide much-needed clarity to employers that this form of treatment is illegal. And discrimination complaints filed with state enforcement agencies decreased after these laws went into effect. The annual likelihood a company will be sued under a family responsibilities discrimination law is essentially zero (0.001%), according to data from the four states that already prohibit it.
Example Caregiver Anti-Discrimination Legislation
While none of the existing state laws that address family caregiver discrimination require employers to provide worker accommodations, recent legislation includes this pro-worker policy option. See below for examples of both.
Accommodations Not Required: Delaware – Enacted state legislation (2016 DE HB 317/Chapter 292) makes it illegal for an employer to discriminate against an individual due to their family responsibilities. Employment discrimination can take many forms, including decisions on hiring and firing; compensation; employment terms; work conditions; or any privileges, opportunities, or status provided to employees. This law specifies that it does “not create any obligation for an employer to make special accommodations for an employee with family responsibilities, so long as all policies related to leave, scheduling, absenteeism, work performance, and benefits are applied in a non-discriminatory manner.”
Accommodations Required: California – A recent state bill (2022 CA AB 2182) would not only prohibit employment discrimination on account of family responsibilities, but it would also require employers to provide reasonable accommodations to an employee who needs to care for a family member due to unforeseen closure of a school or unavailability of a care provider. These accommodations could include using paid time off, making overtime optional, reducing work hours, working remotely, swapping shifts with a coworker, or temporarily changing job duties. A San Francisco ordinance includes the right to a flexible or predictable working arrangement, which includes accommodations such as changing hours/schedule, job sharing arrangements, predictable hours, and telework.
Policy expert Liz Morris on caregiver discrimination
Resources for Action
Model legislation and a step-by-step drafting guide from the Center for WorkLife Law
List of the 200+ state and local laws prohibiting caregiver discrimination
EEOC Guidance on unlawful treatment of workers with caregiving responsibilities
2021 Report finding that caregiver discrimination laws do not increase litigation rates
2022 Report finding that enforcement agency complaints decreased after enactment
At-A-Glance: Anti-Retaliation Legislation to Protect Workers and the Rule of Law
A joint publication with:
Introduction
States across the U.S. have enacted innovative laws to address rising levels of economic inequality by going beyond the minimum protections offered at the federal level. However, enacting a higher state minimum wage or paid sick leave laws is not enough. Effective enforcement is crucial to ensuring that workers—particularly women, immigrants, and BIPOC workers—benefit from legislation that is intended to raise labor standards. Lawmakers must ensure that state labor agencies have the tools and resources that they need to successfully enforce worker protection laws.
Retaliation through “adverse employment actions”is a means to punish workers who speak out and to discourage other workers from coming forward. For example, workers have been fired, been blacklisted, had their hours reduced, experienced negative changes to their schedules or duties, or suddenly been told that their I-9s were not valid. For labor law enforcement to be effective, “protected activities” like reporting a labor law violation, cooperating in an investigation, and testifying at trial must truly be protected. Without worker cooperation, it is exponentially more difficult for enforcement agencies to conduct thorough investigations into whether employers are violating labor laws.
“The successful enforcement of worker protection law depends on workers being empowered to and feeling safe enough to speak out for themselves and their fellow workers.” — Maia Fisher, Regional Solicitor for the U.S. Department of Labor
Policy Option: Rebuttable Presumption of Retaliation
The challenge for labor standards enforcement agencies and workers is that retaliation, though pervasive, is notoriously difficult to prove. In recent years, actions have been taken in several states to address this challenge and strengthen retaliation protections by including a rebuttable presumption that an adverse action taken soon after a protected activity is retaliatory. In effect, this flips the burden onto the employer—the party that holds the evidence as to why it took the adverse action—to prove that the adverse action was taken for a non-retaliatory reason.
State Legislative Examples of Rebuttable Presumption of Retaliation
Rebuttable presumption of retaliation has been included in minimum wage and paid sick leave laws in Arizona; California; New Jersey; and Washington, D.C. Other states have passed laws that apply to certain industries. For example, Pennsylvania’s Construction Workplace Misclassification Act includes a rebuttable presumption of retaliation, and in 2021, Colorado and Nevada enacted this protection for agricultural and hospitality workers, respectively. In 2022, lawmakers across the U.S., including in Connecticut, Florida, Massachusetts, New Hampshire, and West Virginia, introduced bills to include a rebuttable presumption of retaliation when an adverse action is taken within 90 days of a protected activity.
Policy Option: Comprehensive Definitions
Where the definitions of “protected activity” or “adverse action” are too narrow, an enforcement agency’s ability to find and remedy retaliation is curtailed. Strong retaliation protections require comprehensive definitions of these elements. For example, “protected activity” should include the exercise of any right guaranteed by the law (e.g., use of sick leave), filing a complaint, participating in an enforcement action, making inquiries about a protected right, and informing any person of an alleged violation of a right guaranteed by the law. Similarly, “adverse action” should be defined broadly enough to account for the many different forms of retaliation.
Policy Option: Increased Damages
Too often, even when the elements of a retaliation are established, the damages the aggrieved person can recover are too low to fully remedy the direct and collateral harm. Likewise, the penalties available for retaliation violations are commonly too small to deter additional acts of retaliation. Strong retaliation protections must include sufficient damages to fully rectify retaliation—including backpay, front pay, and reinstatement—and civil penalties and/or fines that are high enough to serve as a deterrent.
Policy Option: Injunctive Relief
While it is imperative to remedy retaliation for the aggrieved persons, such remedies come at the conclusion of the investigation. In the meantime, those who suffered retaliation still bear the consequences. Additionally, the chilling effect of ongoing retaliation during an investigation can limit worker cooperation such that investigators cannot establish the true extent or nature of the violations. To mitigate the impact of retaliation and preserve the integrity of the investigation, agencies need the ability to immediately intervene and obtain a temporary or preliminary injunction. Such injunctions help to maintain the status quo pending a final judgment.
Frequently Asked Questions
1. Why is illegal retaliation so hard to prove under the Fair Labor Standards Act (FLSA)?
To determine retaliation has occurred, enforcement generally must find that three elements have been established: 1) a worker engaged in a protected activity; 2) an employer took an adverse action; and 3) there is a causal connection between the adverse action and protected activity. Under the FLSA and many state laws, the initial burden is on the worker to prove these three elements. Most often, it is the causal connection that is the hardest to substantiate because the worker rarely has access to any evidence documenting the employer’s true motives, and employers in most states have full discretion to take adverse employment actions against workers for almost any reason, or no reason at all.
2. Is retaliation widespread?
Retaliation is alarmingly common. A national survey found that 43% of workers who complained to their employers about pay and working conditions were subjected to illegal retaliation.
3. What is the impact of retaliation?
For the individual worker, retaliation often results in lost wages, collateral losses (e.g. eviction), and emotional distress. Retaliation also causes a chilling effect that impacts the entire workforce. An adverse action against one worker sends a message about the ramifications of reporting a violation or cooperating in an investigation. The fear of retaliation is especially effective at silencing many of the same workers who are most likely to experience wage theft and other workplace violations. Retaliation often renders agencies’ enforcement efforts less effective, especially against the worst violators.
Policy expert Jenn Round from Rutgers Workplace Justice Lab on Workers' Rights
2020 Session Highlights: How States Support Workers During COVID-19
Background
Over a year into the COVID-19 pandemic, communities across the country, particularly communities of color and low-income communities, continue to experience countless losses of life and economic devastation. In 2020, state leaders took immediate action to provide relief to families and to empower workers through the economic crisis.
Women of color are also more likely to hold jobs in “essential services,” such as grocery clerks and health care workers, where they are most in need of job-protected and paid time off from work, but least likely to have access to it. One in five essential workers are Latinx, and one in six are Black. These frontline jobs, which are often low-paid and without health and safety protections, put Black and Latinx people at greater risk of contracting COVID-19. As a direct result of these increased workplace risks and a long legacy of structural racism in health care and the social determinants of health, Black, Indigenous, and Latinx Americans are dying from COVID-19 at a rate almost 3 times as high as the rate for white Americans.
What are states doing to protect workers’ rights during COVID-19?
The 2020 legislation outlined below aims to protect workers who are recently unemployed as a result of COVID-19 and “essential” workers who are often risking their health to go to work. The policy areas discussed in this publication are:
Emergency Paid Sick Leave
Hazard Pay for Essential Workers
Expansion of Unemployment Insurance Benefits
Workers’ Compensation
Workplace Health and Safety Protections
Whistleblower Protections
Wage Theft Protections
Please note that this is neither a comprehensive policy list nor necessarily a list of the most progressive solutions on this subject; when moving forward with legislation, we recommend working with local and national advocates to craft the best solution for your state. Please reach out to SiX if you would like help connecting with national experts.
Emergency Paid Sick Leave
Paid sick leave is essential so that workers can stay home when they are sick, and it is absolutely critical to stopping the spread of a virus during a pandemic. Nearly one in four American workers do not have access to a single paid sick day at their job. Low-wage workers, service workers, and Latinx workers are the least likely to have access to paid sick leave. Congress authorized the first national paid sick leave policy with the passage of the Families First Coronavirus Response Act (FFCRA), giving workers up to two weeks of emergency paid sick days for coronavirus-related health and caregiving needs. The new policy was historic and lifesaving—one study estimated that the FFCRA paid sick leave provisions resulted in 400 fewer confirmed cases of COVID-19 per state per day.
Still, carve-outs in the new federal protections left out up to 106 million workers, many of them women of color in the health care industry. With the expiration of the FFCRA leave protections, states must act to protect workers by enacting emergency or permanent paid sick leave legislation. Only 13 states and Washington, D.C. have passed legislation to provide permanent paid sick leave to workers who would otherwise not have access to it, allowing employees to put personal or family health needs first, including when ill or experiencing symptoms of COVID-19.
Colorado enacted CO SB 20-205, which is now one of the country’s strongest paid sick time laws. Through December 31, 2020, the legislation extended access to emergency paid sick leave for more workers who were left out of the FFCRA protections. Beginning January 1, 2021, the law entitled employees to earn paid sick time for general personal and family health needs.
New Jersey’s legislature passed NJ S 2304/A 3900, a bill that expands the state’s existing paid sick leave laws to include leave for caregiving or quarantine needs during a declared state of emergency.
The California legislature passed CA AB 3216, which was vetoed by the governor. As introduced, the bill would have amended the state’s laws to allow paid sick leave for high-risk individuals, caregivers, and other public health workers. By executive order, the California governor provided emergency paid leave for food sector workers for purposes related to COVID-19. California also enacted CA SB 1383, which expands existing unpaid medical leave protections to workers at businesses with five or more employees (lowered from 50 or more employees) and protects an employee’s health benefits during the leave. This means that more workers will be able to take job-protected leave (paid or unpaid) to care for a family member with a serious illness.
The Massachusetts legislature introduced MA H 4700 and MA H 4928, which would have entitled all workers in Massachusetts to emergency paid sick leave during current and future public health emergencies. Massachusetts also introduced MA H 4627, which would have ensured state government employees have paid sick leave time to address health impacts due to COVID-19 infection, quarantine, or isolation.
The Michigan legislature introduced MI SB 0961, which would have expanded the state’s existing paid sick time law to be more comprehensive and provide additional coverage for public health emergencies. By executive order, Michigan’s governor protected workers from retaliation for staying home from work to prevent the spread of COVID-19.
Legislators in Louisiana introduced LA HB 832, which would have created permanent paid sick leave protections for workers, including leave for business or school closures due to a public health emergency.
The Ohio legislature introduced OH HB 593 to provide quarantine or isolation pay and sick leave benefits to workers during a declared emergency. This bill would also have created an unemployment insurance-like grant program for contract workers who are unable to work due to quarantine or public health orders.
Hazard Pay for Essential Workers
Some states introduced legislation in 2020 to provide additional compensation in the form of “hazard pay” to essential workers, since they are at a greater risk of contracting COVID-19. Nearly half of all frontline essential workers, who are disproportionately Black and Latinx, are paid less than a living wage. Not only are essential workers woefully underpaid and risking their lives to keep the rest of the economy running—they are also more likely to have an underlying health condition that puts them at increased risk of serious illness if infected with COVID-19.
In the early months of the pandemic, many large corporations announced modest hazard pay for essential workers. A poll conducted in May found that 30 percent of people working outside their home were receiving hazard pay. By late summer, despite reporting skyrocketing profits, nearly all of the nation’s largest companies had ended their hazard pay policies. As the hazard of working in frontline industries continues, hazard pay policies at the state level can extend a lifeline to essential workers.
The Massachusetts legislature introduced MA H 4740, which would have provided emergency health hazard benefits to each essential employee. The legislature also introduced MA H 4745, which would have required that any employer that provides COVID-19 essential services to also provide hazard pay if they employ at least six individuals.
The New York legislature introduced NY A 10359/S 8955 to provide hazard payments of up to $25,000 annually to essential workers during a state disaster emergency. Another New York bill, NY S 8839, would provide frontline state workers with a $2,500 pay differential and 35 hours of additional accrued vacation time.
Legislators in Vermont enacted VT H 965, which appropriated $28 million in federal Coronavirus Relief Funds (CRF) to establish the Frontline Employees Hazard Pay Grant Program. The program makes grant funds available to health care, human services, and public safety employers to provide a one-time hazard payment of up to $2,000 to eligible employees. The Vermont legislature also passed VT S 352, which appropriated an additional $2.5 million and expanded the hazard pay grant program to other industries, including janitorial services, food service providers, nurse contracting agencies, and homeless shelters.
The Louisiana legislature enacted LA HB 70, which provided a one-time hazard pay rebate of $250 to workers in “essential critical infrastructure” industries earning less than $50,000 in annual income. The rebate program was funded by a $25 million appropriation in federal CRF funds and administered by the state’s Department of Revenue.
The passage of the Coronavirus Aid, Relief, and Economic Security (CARES) Act in March of 2020 and the short-term relief bill that passed in December provided a much-needed boost to struggling state unemployment programs by providing a temporary supplement to benefit amounts, extending the duration of benefits, and extending benefits to more workers who are typically ineligible for UI, including self-employed workers and independent contractors. States can build upon the new federal enhancements by strengthening their UI programs to better protect the economic security and health of all workers.
Colorado enacted CO SB 20-207, which ensures that workers can return to work safely by clarifying that an allowable reason for UI recipients quitting or not returning to work includes caregiving needs, school closures, or underlying health conditions during a public health emergency.
Kansas enacted KS HB 2016, which introduces temporary flexibilities in the UI program by waiving the work search requirement for applicants during the disaster emergency and waiving the one-week waiting period before new claimants can receive benefits.
Minnesota enacted MN HF 4531, which temporarily amends the definition of “suitable employment” for the purposes of UI eligibility to exclude jobs that put the health and safety of the applicant, other workers, or the public at risk for potential exposure to COVID-19. The bill also temporarily suspends the one-week waiting period for receiving benefits and provides that involuntary leaves of absence related to COVID-19, such as a public health order or school closure, do not make an applicant ineligible for UI.
New York enacted NY S 8275, which allows recipients to receive benefits even if they have previously received an overpayment in benefits. The bill suspends existing penalties against such UI applicants for the duration of the current state of emergency.
The Massachusetts legislature introduced MA H 4747, which would have appropriated $75 million in state rainy day funds to establish the COVID-19 Food Service and Hospitality Worker Relief Emergency Fund. The fund would have provided financial assistance to individuals employed in the food service and hospitality industry who have been laid off or are otherwise experiencing financial distress as a result of COVID-19.
Legislators on the Joint Emergency Board in Oregon, which has spending authority when the legislature is not in session, appropriated $10 million in April of 2020 to fund the Oregon Worker Relief Fund, which provides financial support to Oregon workers who are excluded from UI benefits and other forms of federal or state relief, such as undocumented workers. The board appropriated an additional $10 million from the state’s federal Coronavirus Relief Fund (CRF) in June.
The Illinois legislature introduced IL HB 5861/SB 4026, which would permanently waive state efforts to recover benefit overpayments made to UI recipients during the COVID-19 emergency if the overpayments were made through no fault of the recipient
Workers’ Compensation
As more states reopen and workplace transmission of COVID-19 increases, state workers’ compensation insurance programs can protect the health and financial well-being of workers who contract the virus. While workers’ compensation does not cover common community-spread illnesses that may be difficult to identify as workplace-related, there are existing exceptions for chronic illnesses that are prevalent in certain industries, like lung conditions for first responders.
Black, Latinx, and immigrant workers, who are overrepresented among essential industries and less likely to be able to work from home, have been exceptionally vulnerable to workplace exposure to COVID-19. At the same time, low wages and low access to health benefits mean that many essential workers who contract COVID-19 will be faced with catastrophic financial and health consequences without adequate protections. More than a third of essential workers live in low-income households, and essential workers in some industries are more likely to be uninsured. States can take additional steps to ensure that those who contract COVID-19 in the workplace are eligible for health and financial benefits through workers’ compensation.
Vermont enacted VT S 342, which creates a temporary presumption that frontline workers are entitled to workers’ compensation coverage for illness or death resulting from COVID-19. Other workers not included in the definition of “frontline worker” are presumed eligible if they test positive for or are diagnosed with COVID-19 and can document workplace exposure. Employers can rebut the presumption if they can provide a preponderance of evidence that exposure to the disease was not employment-related, or that at the time of exposure, the employer was in compliance with federal, state, and local public health guidance.
California passed a bill, CA SB 1159, which provides for a rebuttable presumption of workers’ compensation eligibility for frontline workers who contract COVID-19. The bill also creates a general presumption of compensability for any worker who tests positive for COVID-19 when an outbreak of COVID-19 has occurred at their work location.
Colorado introduced CO SB 20-2016, which failed to pass but would have established a rebuttable presumption that if an essential worker who works outside of the home and contracts COVID-19, the illness is presumed to have arisen out of and in the course of employment, and is an occupational disease for the purpose of workers’ compensation. The bill would also have treated COVID-19 as a compensable accident, injury, or occupational disease under the state’s workers’ compensation laws.
Michigan introduced MI HB 5758/SB 928, which would have created a presumption of workers’ compensation eligibility for essential workers by amending the existing definition of “personal injury” to include exposure to an infectious disease during an emergency declared by the governor.
As more states reopen in spite of rising COVID-19 cases, more workers, even in nonessential industries, are facing increased risk of exposure at work. More than half of all Black, Indigenous, and Latinx workers in essential and nonessential industries have jobs that require them to work in person and closely with others, compared to 41 percent of white workers. In most cases, workers have no choice but to risk their health and their family’s health in order to pay the bills: the median income for in-person, close-proximity workers is just $27,700. More than 80 percent of Black, Indigenous, and Latinx workers with such high-risk jobs earned even less than their average counterparts. In the absence of federal health and safety protections for workers, states can establish stronger measures to prevent and reduce transmission of COVID-19 in the workplace by setting standards for social distancing, provision of personal protective equipment (PPE), disinfection and deep cleaning, ventilation rates, and disclosure requirements for potential exposure.
The California legislature enacted CA AB 2537, which requires employers of workers who provide direct patient care in a hospital setting to supply employees with PPE. The bill also requires that such employers maintain a three-months supply of unexpired protective equipment and provide reports of PPE consumption and inventory to the state Division of Occupational Safety and Health. Another bill passed in California, CA SB 275, requires the Department of Public Health to establish a state stockpile of PPE to ensure an adequate supply for health care workers and essential workers.
The New Jersey legislature introduced NJ S 2602/A 4404, the Farm Worker Epidemic Health and Safety Act, which directs the state commissioner of health to establish a system for the timely reporting of public health violations in the agricultural and food processing industries. The bill would also establish new administrative penalties for employer violations of the act and new anti-retaliation protections for farm workers.
The New York legislature introduced NY A 10512/NY S 8385, the Nursing Home Protection Act, which would have required the commissioner of health to provide twice-weekly COVID-19 testing to nursing home staff and weekly testing to all nursing home residents. The bill would also have required the Department of Health to provide sufficient PPE to all nursing home staff and residents.
The North Carolina legislature introduced NC HB 1196, which would have required all staff employed at a congregate or residential care facility, except for correctional facilities, to be tested for COVID-19 weekly. Under the bill, the state Division of Health Service Regulation would have been responsible for the costs of distributing the tests and any necessary PPE to conduct the weekly tests.
The Pennsylvania legislature introduced PA HB 2694, the COVID-19 Pandemic Frontline Employee Health and Safety Protection Act, which failed to advance but would have created new protections for health care and emergency responder workers, including requiring precautions to reduce transmission, provision of appropriate levels of PPE, provision of mental health benefit coverage, and regular COVID-19 testing. The bill would have required all other employers to make public health accommodations for workers, including limiting in-person services, social distancing, provision of PPE, and notification of possible exposure to COVID-19 when an employee has been infected.
Whistleblower Protections
Workers should not have to decide between risking their health and risking their jobs. Still, in the first six months of the pandemic, the Occupational Safety and Health Administration (OSHA) received nearly 1,800 COVID-19-related complaints about employer retaliation from workers who reported unsafe working conditions. Of those complaints, more than half were dismissed without investigation, 20 percent were docketed for investigation, and just 2 percent were investigated and resolved. Robust whistleblower protections are essential to preventing continued COVID-19 workplace outbreaks, especially as retaliation complaints have increased during the pandemic, while the number of staff in the OSHA whistleblower program has decreased.
Structural racism in the economy leaves workers of color particularly vulnerable to employer backlash for whistleblower complaints. A recent survey of workers found that Black workers are more than twice as likely as white workers to report being punished or fired for raising concerns about COVID-19 transmission at work. The consequences of employer retaliation against whistleblowers are clear: many workers continue to endure hazardous work for fear of losing their job. Nearly three-quarters of Black workers and nearly two-thirds of Latinx workers reported going to work even though they believed they were risking their health, compared to 49 percent of white workers. States can establish stronger whistleblower protections by instituting new enforceable standards, protecting informal complaints to fellow workers or the public, and providing for the right to refuse work under dangerous conditions.
Colorado enacted CO HB 20-1415, which prohibits employers from discriminating or retaliating against any worker who raises concerns about workplace health and safety practices related to a public health emergency or who voluntarily wears their own PPE to the workplace. Under the new law, workers can seek relief through a private right of action or by suing in the name of the state after they have exhausted administrative remedies. The law also protects informal disclosure of workplace hazards, such as on social media or to fellow workers, by prohibiting employers from requiring nondisclosure agreements regarding public health emergency-related health and safety practices.
The New Jersey legislature introduced NJ S 2509/A 4156, which would protect health care professionals from retaliatory action for speaking out about employer practices that they believe to be in violation of the law, for participating in any investigations of the employer, or for refusing to participate in an activity that they believe to be in violation of the law or incompatible with safe public health practices. The bill further protects the right to refuse to work on-site under conditions that would jeopardize their health or the health of their family.
The North Dakota legislature introduced ND HB 1262, which would have amended existing anti-retaliation protections for whistleblowers to include employees who report a public health-related workplace violation to an employer, governmental body, or law enforcement official, and employees who voluntarily wear their own PPE beyond what is provided by the employer.
Wage Theft Protections
Every year, workers lose billions of dollars when employers fail to pay their employees for overtime work, off-the-clock work, meal or rest breaks, and other wage theft violations. Under normal economic circumstances, workers of color, women, immigrants, and low-wage workers are more likely to have wages stolen from their paychecks. During economic downturns, minimum wage violations soar alongside unemployment levels as workers are unable to find other jobs when their employers shortchange them, nor are they able to find adequate resolution through labor officials at public agencies with slashed budgets.
Workers lost 20 percent of their hourly wage to minimum wage violations from 2007 to 2009, and the patterns of wage theft continue to mirror policy decisions of the past to exclude Black and Latinx workers from labor protections. Non-citizens were twice as likely to experience minimum wage violations than citizen workers during the Great Recession. Latinx workers were 84 percent more likely, and Black workers 50 percent more likely, to experience such violations than white workers. The compounding effects of discrimination based on race, gender, and citizenship are even more staggering: non-citizen Latina workers were four times more likely, and non-citizen Black women were 3.7 times more likely, to have lost wages when compared to white male citizens. States can take steps to protect their workers from wage theft in the ongoing pandemic recession by strengthening enforcement mechanisms and enhancing options for workers to seek relief from wage theft violations.
The Virginia legislature enacted VA HB 123 and VA SB 838, which provide an employee with a private cause of action (individually, jointly, or with or on behalf of similarly situated employees as a collective action) against an employer who fails to pay wages. These new laws also provide that employers are required to pay triple the amount of wages due and attorney fees and costs if it is found that the employer knowingly violated these wage laws. VA SB 838 also includes language requiring general contractors and their subcontractors to be jointly liable to pay wages due to the subcontractor’s employees.
The Virginia legislature also enacted VA HB 337 and VA SB 48, which prohibit an employer from discharging or otherwise discriminating against an employee because the employee filed any complaint, caused any proceeding related to the failure to pay wages to be instituted, or testified (or is about to testify) in any such proceeding. An employer who is found to have retaliated against an employee under this section may be required to reinstate the employee and pay any lost wages, plus punitive damages.
The Illinois legislature introduced IL SB 3295 and IL HB 4293, which would have entitled an employee to recover damages of 5 percent (rather than 2 percent) of the amount of any underpayments in wages for each month the underpayments remain unpaid.
The Kentucky legislature introduced KY HB 40 and KY HB 606, which would have created a new crime of “theft of wages” classified as a Class A misdemeanor for wages less than $500, Class D felony for wages greater than $500 and less than $10,000, and Class C felony for wages of $10,000 or more. These bills would have also implemented employer recordkeeping and disclosure requirements, such as requiring certain employers to include rate of pay, the number of hours worked, and the total amount of gross pay earned on wage statements; keep records for three years of the name, address, and occupation of each employee, the rate of pay and amount paid to each employee, and a list of personnel policies and a copy of the wage statement provided to each employee; and provide to an employee a written notice at the time of hire that details the method of pay, the employee’s employment status, accruals of time, deductions that may be made from pay, and the name and address of the employer. KY HB 606 would also create a wage payment bond requirement for employers in the minerals industry.
The Massachusetts legislature introduced MA S 2939 and MA H 5086, which would have provided employees with treble (triple) damages when the state attorney general wins a civil suit against their employer for wage theft violations. These bills would have provided the power to issue a stop work order by the attorney general if an employer was found to have engaged in wage theft and by the director of the Department of Unemployment Assistance if the employer failed to make unemployment contributions. These bills would also have implemented protections for workers hired by subcontractors.
2020 Highlights: Racial Data Transparency and Addressing Disparities in COVID-19 Treatment
Key Trends
Increasing racial data transparency through improved data collection and analysis.
Improving access to health care through telehealth expansion.
Expanding Medicaid and insurance coverage to address health disparities.
Introduction
Racial disparities in health coverage, chronic health conditions, mental health, and mortality persist across the United States. Racism has led to the deeply entrenched inequality within our country’s healthcare, economic, and social systems that perpetuate these health disparities and inequities. Such inequity becomes magnified in times of national hardship, such as the unprecedented global pandemic and economic recession we are currently experiencing.
The CDC COVID Data Tracker indicates that there have been around thirty million known COVID-19 cases in the United States, and the virus has killed around 500,000 people as of the end of February 2021. Although COVID-19 does not discriminate along racial or ethnic lines, racial, ethnic, and Indigenous communities are more vulnerable to the pandemic. The compounding effect of existing inequities put Black and Brown people, communities of color, Indigenous people, and other marginalized groups at greater risk of infection and death.
For example, these communities:
Experience higher risks of developing chronic health conditions, like obesity and asthma;
Are disproportionately concentrated in employment sectors and occupations that are highly vulnerable (e.g. farmworkers, grocery workers, transit operators);
Are more likely to rely on public transit as their main form of transportation and face the risk of contracting COVID-19 in a crowded bus;
Often face challenges with accessing nutritious and healthy food;
Have limited safe, affordable housing choices and often live in overcrowded housing;
Make up a disproportionate percentage of the population in prisons, which account for many of the hot spots of COVID-19 infections;
Are more likely to experience discriminatory behavior by healthcare professionals and receive lower quality care than their white counterparts; and
Have less access to health insurance, quality medical care, or paid sick leave.
Furthermore, undocumented workers--many of whom are working in vulnerable sectors, such as food supply and retailing--are at a greater risk because they have no access to employment benefits or paid sick leave. In addition, undocumented communities have minimal access to federal support because federal COVID-19 aid was only made available to those with a social security number and those who had paid federal income taxes.
As more states release demographic data on COVID-19 cases and mortalities, it has become clear that the virus is impacting the most marginalized and vulnerable populations the hardest.
When adjusting the data for age differences in race and ethnicity groups, Black, Indigenous, Pacific Islander, and Latinx Americans all have COVID-19 death rates of triple or more the rate of white Americans. Specifically, compared to white people, the 2020 U.S. age-adjusted COVID-19 mortality rate for:
Black people is 3.6 times as high
Indigenous people is 3.4 times as high
Latinx people is 3.2 times as high
Pacific Islanders is 3.0 times as high, and
Asians is 1.3 times as high.
As APM Research Lab has reported, this indicates that many younger Americans in these racial and ethnic groups are dying of COVID-19--driving their mortality rates far above white Americans. However, in every age category, “Black people are dying from COVID at roughly the same rate as white people more than a decade older.” This data reveals the inequitable impacts of COVID-19 and highlights the racial disparities policymakers must address.
It is also important to note that not every state has published comprehensive demographic data on the racial, ethnic, and language characteristics for those affected by COVID-19. There are still many states where race and/or ethnicity is unknown for a significant share of not only confirmed cases and deaths, but also general testing results. Expanded testing has provided more insight into the spread of COVID-19 and its impacts on marginalized communities. However, there has been many barriers to equitable testing that prevent proper data collection. For example, drive-in testing sites often require a vehicle to be tested. But Black households and people of color are least likely to have access to a vehicle. Targeting testing resources, such as accessible sites, supplies, and tailored messaging, could alleviate ongoing and future health disparities due to the pandemic.
In addition, a lack of uniform reporting guidelines across the U.S, has made it difficult to estimate the pandemic’s true toll on different communities. For example, many states lump Hispanic and Latinx identities together in the racial breakdown, whereas other states do not. In addition, some lump Indigenous people into the “Other” category, preventing states from being able to identify the complete effects of the virus on the Indigenous community. Without extensive and accurate demographic data, policymakers and researchers have no way to address ongoing inequities and identify which populations need additional access to resources.
It is critical that state legislators account for existing racial disparities in health care access and take steps to promote health equity. Some state legislatures across the country are addressing racial and ethnic disparities by adopting policies that expand health coverage and promote racial data transparency. This report summarizes some of the most important state-level developments from 2020 legislative sessions.
Racial Data Transparency
State legislators are taking action to increase racial and health data transparency by:
Advocating for better data collection and reporting of comprehensive racial data;
Investing in contact tracing programs;
Putting in place a racial impact component within legislation that may affect racial and ethnic groups;
Better Data Collection And Reporting Of Racial Data
Without comprehensive race and ethnicity data, the communities most impacted by the pandemic cannot be identified. As a result, some lawmakers are pushing for a more comprehensive collection of frequently updated data not only related to COVID-19, but also for any future public health emergencies.
A. Comprehensive COVID-19-related Data Collection
Massachusetts passed a bill (MA HB 4672/Chapter 93), which requires the state’s department of public health to collect data from all boards of health and publicly report the daily total and complete aggregate numbers of those who have tested positive for COVID-19, have been hospitalized, and have died as a result of a confirmed or probable case. It also requires the department to publish a daily report on such data from each state and county correctional facility, and elder care facilities. Each daily report must allow for the identification of trends, testing, infection, hospitalization, and mortality based on demographic factors, including race and ethnicity.
New Jersey enacted legislation (NJ S 2357/Chapter 28), which requires hospitals to report to the state’s department of health demographic data, including race and ethnicity, on not only confirmed COVID-19 cases and deaths, but also the number of those who are admitted for treatment, those who attempt to get treated, and those who are turned away after attempting to get tested. The data will be posted publicly, updated on a daily basis, and compiled by county and municipality. Michigan also introduced a similar bill (MI HB 5753), but it failed to pass.
New York legislators introduced a bill (NY SB 8360) that did not include as many components as Michigan’s or New Jersey’s, but would have uniquely required data related to all COVID-19 testing regardless of the result, including the number of individuals tested. In addition, the bill would have required reporting of not only general demographic information, like race and ethnicity, but also primary language, socioeconomic status or occupation, disability status, and county or city of residence. Massachusetts enacted legislation (MA HB 4672/Chapter 93) with a similar component.
In Michigan, a bill (MI HB 5753) introduced in the House would have required hospitals to collect and report to the state’s department of health comprehensive demographic data on those affected by COVID-19 or any other communicable disease and infection during a future state of emergency. Louisiana enacted a resolution (LA SR 76) with similar language.
New York legislators introduced legislation (NY SB 8360), which included a component that would have required the Department of Health to submit to specific legislative committees a preliminary report on the following: (1) description of COVID-19-associated race and ethnicity data, and (2) evidence-based response strategies for future pandemics.
Investment In Contact Tracing Programs
Contact tracing sheds light on how a disease, such as COVID-19, is spread by locating, talking, and working with people who have tested positive for the virus to identify and track people with whom they have been in close contact. Because the United States did not have a national contact tracing strategy, there has been insufficient data about how different populations are being affected by the virus. Thus, states are investing in contact tracing programs to collect more comprehensive data that accurately reflects the impacts of COVID-19 on different communities.
A. Allocation of Funds for Contact Tracing Programs
State lawmakers have worked to appropriate funds from either the CARES Act’s Coronavirus Relief Fund or their general fund for the purpose of expanding public and private initiatives for COVID-19 testing, contact tracing, and trends tracking and analysis. These funds could be used to hire contact tracers, purchase necessary equipment, and expand the contact tracing infrastructure to take appropriate public health actions. Hawaii’s legislature enacted this legislation (HI SB 75), while similar bills were introduced but failed in Minnesota (MN HF 4579) and North Carolina (NC HB 1038).
South Carolina passed a bill (SC HB 3411) that requires the Medical University of South Carolina, in consultation with other health departments and associations, to develop and deploy a statewide COVID-19 testing plan. To implement the plan, the Department of Health and Environmental Control will collaborate with hospitals and other medical stakeholders, and provide access to information on hotspots and contact tracing. The plan also emphasizes testing in rural communities and communities with a high prevalence of COVID-19 and/or with demographic characteristics consistent with risk factors for COVID-19.
B. Contact Tracing Representation
New York enacted legislation (NY AB 10447), which requires city contract tracers to be representative of the cultural and linguistic diversity of the communities they will serve. In addition, it mandates New York City’s Department of Health and Mental Hygiene and the city’s health and hospitals corporations to submit an annual report on contact tracer worker diversity.
Similarly, South Carolina passed a bill (SC HB 3411), which mandates the Department of Health to identify no fewer than 1,000 contact tracers who are best suited to interact in a culturally appropriate manner and in the required languages of those disproportionately affected by COVID-19.
C. Privacy Protections
While contact tracing programs are crucial for collecting COVID-19 data and increasing racial data transparency, these programs have privacy implications that can harm immigrant communities and other marginalized groups. There have been concerns about whether or not confidential information would be misused or shared to other government agencies, such as immigration authorities and law enforcement, for reasons unrelated to the goal of tracking the spread of the virus. For example, police in Minnesota have reportedly used contact tracing data to track protestors from racial justice demonstrations. Allowing law and immigration enforcement to access and weaponize contact tracing data would disproportionately harm communities of color who are already being hit the hardest by the pandemic.
To protect these communities and encourage participation in contact tracing programs, legislators must prohibit immigration authorities and law enforcement from accessing contact tracing data. New York legislators enacted legislation (NY AB 10500/Chapter 377) that protects the data compiled by contact tracers from legal processes. In addition, it specifies that no contact tracer or contact tracing entity may provide contact tracing information to a law enforcement entity or immigration authority.
Kansas passed a similar bill (KS HB 2016/Section 16), which requires contact tracing data to be used only for the purposes of contact tracing. The data must be confidential and not disclosed, and safely and securely destroyed when no longer necessary for contact tracing. The bill also prohibits the state or any municipality, or any officer or official or agent thereof, from conducting or authorizing contact tracing, except under certain circumstances.
Racial Impact Statements Within Legislation
State lawmakers are trying to address racial disparities through the inclusion of racial impact statements in legislation. Similar to the fiscal notes often attached to legislation, a racial impact statement would analyze and address how different racial and ethnic groups will be negatively or positively impacted by proposed legislation. The analysis is used to not only inform legislators’ decisions, but also reduce, eliminate, and prevent racial discrimination and inequities. Illinois legislators introduced a bill (IL HB 4428), which would have required a racial impact statement for any legislation that has or could have a disparate impact on racial and ethnic groups.
Massachusetts and Ohio introduced a more specific set of legislation (MA HD 2789/SD 936 and OH HB 620) that would have required a racial impact and health disparities analysis for health-related initiatives and policies. Ohio’s legislation took a more progressive lead by also requiring the statements to determine whether introduced bills have a positive, negative, or neutral impact on the accomplishment of health equity in the state, health or health equity of specific populations in geographic areas, and the social determinants of health for the most vulnerable populations.
Addressing Disparities In COVID-19 Treatment And Testing
Lawmakers are seeking to address disparities by making healthcare more accessible to vulnerable communities through the expansion of telehealth, Medicaid, and insurance coverage.
Telehealth
In order to prevent the spread of COVID-19, many health care systems have begun utilizing telehealth and telemedicine technology for medical appointments. Such reliance on technology creates barriers for those who lack access to quality broadband and telephone services.
State legislators are expanding access to healthcare by:
Ensuring telehealth payment parity;
Expanding telehealth coverage for audio-only appointments; and
Waiving or lowering cost-sharing for telehealth and telemedicine.
A. Ensuring telehealth payment parity
In order to mitigate the spread of COVID-19, healthcare systems have had to adopt methods, such as telehealth, that do not rely on delivering health care services in-person. In response, state legislators have introduced payment parity bills that would require insurance plans to provide a reimbursement rate for telehealth services that is equal to, on the same basis as, or no less than the rate provided for in-person services.
Vermont enacted legislation (VT HB 742/Section 24), which includes a component on payment parity. In addition, the following states all introduced variations of this type of bill, but none were enacted:
A similar bill introduced in Washington (WA HB 2770) that would have allowed hospitals, hospital systems, telemedicine companies, and provider groups with 11 or more providers to negotiate their rate.
B. Expanding telehealth coverage for audio-only appointments
For telehealth services, some states require a provider and patient to use real-time, interactive audio and visual communication. However, such a requirement leaves patients who only have landline or audio-only phones without access to telehealth. Many of these patients are often low-income and come from marginalized communities. State lawmakers are working to increase access to healthcare for all by permitting audio-only telehealth appointments. Some have also restricted benefit and insurance plans from placing any restrictions on the electronic or technological platform used to provide these virtual services.
New Jersey legislators also enacted a different bill (NJ AB 3860/SB 2289), which waives certain regulatory requirements in order to facilitate telemedicine health services during COVID-19, including any privacy requirements that would limit the use of technological devices that are not typically used in telehealth services.
C. Waiving or lowering cost sharing for telehealth and telemedicine
State lawmakers are eliminating barriers to telehealth by waiving or lowering cost-sharing for telehealth services related to COVID-19.
New Jersey enacted a bill (NJ AB 3843), which provides coverage for telemedicine and telehealth to the same extent for any other services, except that no cost-sharing shall be imposed on the coverage.
Michigan introduced legislation (MI HB 5633) which would have required examination, diagnosis, and prescribed treatment of COVID-19 by telemedicine to not be subject to any coinsurance, copayment, application to a deductible, or limit.
Medicaid And Insurance Coverage
State legislators are working to address health inequities by proposing legislation that would:
Move more states to adopt the Affordable Care Act’s Medicaid expansion;
Expand Medicaid and insurance coverage for uninsured, undocumented, and low-income individuals; and
Waive or lower cost-sharing for COVID-19 testing and treatment.
A. Expanding Medicaid in states without Medicaid expansion
Thirty-eight states, and D.C., have expanded their Medicaid program under the Affordable Care Act.
Of the 38 states, Oklahoma and Missouri passed expansion initiatives (OK State Question 802 and MO Amendment 2) that will be implemented in 2021. That leaves nearly two million people in 12 states who are ineligible for Medicaid coverage and left without access to an affordable coverage option. The COVID-19 emergency is putting intense pressure on these states to ensure greater access to quality health care for all, especially those disproportionately impacted by the pandemic. As a result, some lawmakers in these 12 states have sought to expand the eligibility requirements for their Medicaid programs.
North Carolina (NC HB 1040), South Carolina (SC HB 5476), Alabama (AL HB 447), Kansas (KS SB 252), and Florida (FL SJR 224/HJR 247) introduced bills to adopt the ACA’s Medicaid Expansion, which provides Medicaid coverage to non-elderly adults with incomes below 138 percent of the poverty line (though none of these bills passed).
North Carolina also introduced a different bill (NC HB 1038/Section 3A) that would have provided temporary, targeted Medicaid coverage to individuals with incomes up to 200%, rather than 133%, of the poverty line for COVID-related services. In addition, it would have provided Medicaid coverage for COVID-19 testing to the uninsured.
B. Expanding Medicaid and insurance coverage for uninsured individuals, low-income groups, and undocumented communities during the pandemic.
State legislators are working to address COVID-19-related health disparities by expanding insurance coverage for uninsured, low-income, and undocumented communities.
Ohio introduced legislation (OH HB 583) that would have temporarily waived certain Medicaid requirements during the pandemic and expand financial eligibility to 300% of the poverty line for children and 200% for adults. In addition, the state introduced a resolution (OH HCR 27) which demanded the Trump Administration to create a special enrollment period in the ACA marketplaces for uninsured Ohioans who may be unable to access COVID-19 testing and treatment.
Minnesota enacted an exhaustive COVID-19-related legislation (MN HF 4556/Section 11), which included a provision for Medicaid to cover the COVID-19 testing of uninsured individuals. Similarly, New York also introduced a bill (NY SB 8123/AB10494) that would have allowed any uninsured individual, regardless of immigration status, be eligible for COVID-19 testing at no cost.
Legislation in New York (NY SB 8366) would have amended the state’s social services law and increase COVID-19 health services eligibility for those who are residents of the state, have a confirmed case of COVID-19, have a household income below 200% of the FPL, and are ineligible for federal financial participation in the basic health program on the basis of immigration status.
C. Waiving or lowering cost-sharing for COVID-19 testing and treatment
Increased access to the COVID-19 testing and treatment will enable local and state public health departments to accurately track the course of the pandemic. It is also critical that people receive affordable and equitable access to health care services, especially during this time. State lawmakers are focusing on ensuring health care affordability and accessibility for those impacted by the virus by waiving or lowering cost-sharing for COVID-19-related services. These services may include, but are not limited to, diagnostic and antibody testing, physician office visits, telemedicine services, hospitalizations, antiviral drugs, and vaccines.
Louisiana and New Jersey enacted similar laws (LA SB 426 and NJ AB 3843), while variations on this type of legislation were introduced but failed to pass in Minnesota (MN HF 4416), Michigan (MI HB 5633), and Ohio (OH HB 579).
Complementary Policies
Create a Commission to study COVID-19 racial disparities and recommend actions to policymakers, community leaders, and healthcare systems that promote health equity and address the factors that leave racial, ethnic, and indigenous communities vulnerable during public health emergencies.
Increase broadband access and close the digital divide to ensure communities have access to the communication tools necessary for accessing medical care through telehealth and telemedicine appointments.
Increase pay and protections for frontline workers, and ensure these workers have access to paid sick leave. Paid sick leave allows employees to take care of themselves and/or their loved ones during the pandemic without having to sacrifice their financial and job security.
Allocate resources to communities most impacted by COVID-19 by setting up testing centers in low-income areas and within existing community networks, such as community health centers and organizations. These sites will help expand access to COVID-19 testing for those who have had limited access before.
2020 Highlights: States’ Housing Response to COVID-19
Key Trends
States have:
Prevented short-term displacement through eviction and foreclosure moratoriums
Replaced lost income for those affected by COVID-19 with rental and mortgage assistance
Stopped long-term evictions through rent freezes, cancellation, and suspensions
Provided funding for shelters and homelessness services
Continued the fight for comprehensive tenant protections, such as rent control and just-cause eviction
Introduction
The COVID-19 pandemic has heightened the existing racial and economic inequalities in the United States and created a deadly situation in which working-class families, already struggling to pay for the necessities of life, have been forced to stay at home while experiencing major losses in income and employment. In under six months, over 60 million workers in the United States filed for unemployment, and unemployment rates have skyrocketed to as high as 14.7 percent—almost five points higher than the peak of the Great Recession. This has led to immense housing insecurity for working-class renters and homeowners across the country.
In the wake of the Great Recession, millions of Americans became housing insecure, and many, particularly renters, never recovered. In 2019, 31.5 percent of all households were housing cost-burdened—meaning they pay more than 30 percent of their income toward housing and utilities. Almost half of renter households are cost-burdened. Additionally, the housing crisis has overwhelmingly impacted low-income families. Eighty-three percent of renters with incomes below $15,000 per year are cost-burdened, and 72 percent are extremely cost-burdened (paying over 50 percent of their income).
Meanwhile, the federal government has massively reduced its commitment to providing affordable housing for decades. Because of demolition and conversion, the public housing stock has been reduced by almost 500,000 units since 1996, and federal capital funding for public housing fell by over $2 billion per year from 2000 to 2013.
Two people inside empty apartment
The Terner Center for Housing Innovation estimated that almost 16.5 million renter households have at least one worker who was employed in an industry affected by COVID-19-related job loss. With millions of Americans struggling to pay housing costs each month, the COVID-19 pandemic has exacerbated the housing crisis. Research suggests that about 31 percent of renters were unable to pay their rent on time in April, compared to 18 percent for the same time period in 2019.
Further, the housing crisis and pandemic have disproportionately affected Black, brown, and Indigenous communities. According to data released by New York City, COVID is killing Black and Latinx people at twice the rate it is killing white people. The economic impacts are also disproportionately felt by communities of color—the unemployment rate for Black workers peaked at almost 17 percent, while the unemployment rate for Hispanic women has reached over 20 percent. Black and brown families are disproportionately renters and employed in industries impacted by shutdowns and stay-at-home orders—the threat of COVID-19 to housing stability is an issue of racial justice. Further, homelessness disproportionately impacts communities of color. While Black people make up 13 percent of the United States population, they account for 40 percent of people experiencing homelessness, and Indigenous people similarly experience homelessness disproportionately.
16.5 million renter households have at least one worker who was employed in an industry affected by COVID-19-related job loss.
creates funds for tenant, landlord, and homeowner assistance;
allocates funding for shelters and services for people experiencing homelessness; and
cancels or suspends rental and mortgage payments.
This report summarizes some of the most important state-level developments from the 2020 legislative session. Please note that this is neither a comprehensive policy list nor necessarily a list of the most progressive solutions on this subject. When moving forward with legislation, we recommend working with state and national advocates to craft the best solution for your state. If you would like additional assistance or to be connected to your state or national advocacy groups, please email us at helpdesk@stateinnovation.org.
Eviction and Foreclosure Prevention
Many states have taken executive, legislative, and judicial action to prevent evictions and foreclosures during the pandemic. Governors have issued executive orders either limiting or fully prohibiting evictions and foreclosures during the pandemic (more info can be found on the details of the executive orders in the Other Resources section). State legislatures have taken further action to establish moratoriums on evictions and foreclosures past what has been outlined in executive actions.
Suspending Evictions and Foreclosures
The Massachusetts legislature passed MA H 4647, a 120-day eviction moratorium that allows the governor to extend the moratorium in increments of 90 days. Legislators failed to pass additional legislation (MA H 4878) that would have:
Banned evictions for rent due for up to a year after the end of the COVID-19 emergency declaration.
Implemented a just-cause eviction standard so tenants and foreclosed homeowners cannot be evicted for no-cause or non-renewal of lease for 12 months following the end of the emergency declaration.
Frozen rents at the level they were at on March 10, 2020.
The Oregon legislature passed a bill (OR HB 4213) that extended the governor’s eviction moratorium until September 30. During the moratorium, landlords were prohibited from delivering notices of termination, taking possession of property or anything that would interfere with a tenant’s use of the dwelling, assessing late fees, or reporting a tenant’s nonpayment of rent to credit reporting agencies. The legislation also provides a six-month grace period following the end of the moratorium to pay the balance of unpaid rent.
New York legislators failed to pass a bill (NY S 8667/A 10827) that would have prohibited courts from executing an eviction warrant or order a monetary judgment for unpaid rent for all tenants for the duration of the state of emergency in New York, plus one full year past the emergency’s termination.
Skateboarder rides past house in Portland, Oregon
Alaska enacted legislation (AK SB 241) that suspended evictions for people experiencing financial hardship related to COVID-19 through June 30, 2020.
The California Assembly passed legislation (CA AB 828) that died in the Senate. It would have prevented any party from submitting a residential unlawful detainer complaint except to address issues of damage to the property, nuisance, or health and safety. It additionally would have prohibited a court from issuing a summons on a complaint for a residential unlawful detainer unless the court finds it is necessary for the reasons listed above. Finally, if a tenant provides documentation of economic hardship due to the COVID-19 pandemic, the bill would have allowed tenants up to 12 months, starting 90 days after the end of the state of emergency, to pay back unpaid rent from the COVID-19 emergency period.
The California Assembly has also passed a piece of legislation that failed in the Senate (CA AB 1436) that would have permanently protected tenants from being evicted for unpaid rent during the COVID-19 emergency and for 90 days after, or April 21, 2021—whichever date is earlier—and would have allowed tenants to pay back any unpaid rental debt accrued.
Another piece of California legislation (CA SB 915) that passed in the Senate and Assembly (but in different versions) would have provided eviction protections for manufactured housing and mobile home owners and tenants. The bill would have also prohibited mobile home park management from evicting or terminating the lease of an owner or tenant who is affected by COVID-19 for failure to pay rent.
Placing a Stay on Evictions and Foreclosures
Lawmakers have introduced legislation that would still allow landlords to file eviction notices with the courts, but would temporarily prohibit courts from carrying out the eviction order and removing a tenant from the property.
The New Jersey Senate passed a bill that is now in the Assembly (SB 2485) to prohibit evictions for nonpayment of rent during certain months surrounding the COVID-19 pandemic.
New York enacted legislation (NY S 8192B) to prohibit any court from issuing a warrant or judgment of possession against a residential tenant during the period of the COVID-19 declared state of emergency, specifically for nonpayment due to the pandemic, and to extend the state’s executive order on the evictions moratorium until the end of the declared state of emergency.
An eviction notice taped onto the front door of a home
Vermont enacted legislation (VT S 333) that allows landlords and lenders to file new eviction and foreclosure actions, but requires the courts to stay the actions through 30 days past the end of the emergency period.
The Ohio legislature introduced legislation (OH HB 562/SB 297) that if passed would have prevented foreclosures and evictions during the COVID-19 state of emergency. Landlords would have still been able to file evictions in court, but the courts would have been prohibited from executing a writ of possession or removing the tenant from a residential property during the state of emergency. Notably, the legislation would have made it so a landlord would not be entitled to rental amounts that were unpaid during the state of emergency if the landlord filed a complaint during the state of emergency and received a writ of execution after the emergency terminated.
Enabling Local Government to Adopt Eviction Moratoriums
New Jersey legislators introduced a bill (NJ A 4228) that, as introduced, would allow local municipalities to adopt their own eviction prohibitions during the COVID-19 pandemic. If the legislation is enacted, it will retroactively cover missed payments for the covered period. (Note: companion bill NJ SB 2485 was amended by the Senate to place a stay on evictions—see above for more.)
Guaranteeing Forbearance
Introduced legislation (CA AB 2501) in California that did not pass would have allowed any borrower experiencing financial hardship during the state of emergency to request forbearance for any mortgage obligation. Mortgage servicers would have been required to grant forbearance for up to 180 days initially, after which the borrower could request up to another 180 days for up to 12 months in total.
Rent Freeze, Suspension, and Cancellation
Housing advocates in several states have been pushing for more aggressive policy solutions than moratoriums to avoid a cascade of eviction filings and foreclosures once the moratoriums end. Instead, they are pushing for a rent freeze and the suspension or cancellation of rent and mortgage payments.
States can see examples from the efforts at both the federal level and local level. For example, Congresswoman Ilhan Omar introduced federal legislation (H.R.6515) to cancel rent and mortgage payments, in addition to any housing debt accrued during the pandemic, and New York City froze rents for one year for over 2 million rent-stabilized units.
A rent freeze means that tenants still pay rent each month, but landlords are not able to increase rent at the end of a lease for the duration of the declared period.
Rent suspension or cancellation means that tenants do not owe rent at all for the duration of the declared period.
Legislators in Massachusetts introduced a bill (MA H 4718) that would have implemented a rent freeze across the state for the duration, and 30 days following the end, of the declared state emergency. The bill would have suspended the statewide prohibition on rent control and the state's preemption of local rent control. It would have allowed the Department of Housing and Community Development and local governments to issue, maintain, and enforce a rent freeze and/or rent control for the declared period.
Terms
Rent Freeze: Tenants still pay rent each month, but landlords are not able to increase rent at the end of a lease for the duration of the declared period.
Rent suspension or cancellation: Tenants do not owe rent at all for the duration of the declared period.
New York lawmakers introduced a bill that failed (NY A 10247/S 8139) that would have partially suspended rent for tenants who had experienced a significant loss of income due to the government-imposed restrictions related to COVID. The legislation would have required those tenants to pay up to either 30 percent of their income or their contractual rent—whichever is less—per month for 90 days following enactment. Landlords also would have been able to apply for relief if they lost rental income.
Another New York bill (NY A 10224/S 8125) would have fully suspended rent payments for any residential tenant or small-business commercial tenant that had experienced a loss of income or forced closure of business due to the pandemic. The bill would have waived rental payments for covered tenants and small businesses for 90 days, and provided the automatic renewal of leases that expired during the covered period. A complementary bill (NY A 10255) was introduced that would have established an assistance fund for “small landlords.”
A stronger rent cancellation bill that was introduced, but failed, in New York (NY S 8802/A 10826) would have fully canceled rent for all tenants and canceled mortgages for small homeowners for the duration of the declared state disaster emergency and 90 days following it. The bill would have additionally provided funding to assist and reimburse housing cooperatives, affordable housing providers, public housing authorities, and landlords.
Illinois legislators introduced an amendment that did not pass (COVID-19 Emergency and Economic Recovery Renter and Homeowner Protection Act) that would have cancelled rent and suspended mortgage payments for those who contracted COVID-19 or experienced a loss of income. The legislation would also have provided protection from retaliation for nonpayment of rent or mortgage, set up a relief fund for landlords and mortgagees negatively impacted by missed payments, and implemented restrictions on evictions for the period following the end of the emergency period.
Lawmakers in New Jersey introduced legislation (NJ A 3948) that would have required a landlord to suspend rent for 90 days upon request from a residential tenant. After 90 days, the tenant would have been able to request another 90 days of rent suspension. Tenants would not be required to pay the balance of their unpaid rent during the period of the suspension.
Rent and Mortgage Assistance
Household items from a recent eviction
While at the federal level, advocates have pushed for $100 billion in emergency rental relief, and many states have set up their own rental and mortgage assistance programs. As eviction moratoriums end, millions of renters across the country will require assistance in order to pay not only their current rent, but unpaid rent accrued during the moratorium periods.
Several state legislatures have appropriated CARES Act funds toward rental and mortgage relief, while governors in multiple states, such as Minnesota, Michigan, and Washington, have also taken action to distribute funding toward assistance programs. While still impactful, advocates have raised concerns that current rental relief efforts will fail to meet the level of support necessary, especially without further federal support. For example, the city of Houston exhausted a $15 million rental fund in 90 minutes, and the city of Los Angeles’s $100 million fund only covered 14% of renters at risk of eviction.
Direct Assistance to Tenants or Landlords
Pennsylvania, Illinois, and Colorado enacted legislation (PA HB 2510, IL SB 264 sections 20 and 21, and CO SB 20-1410) establishing rental and mortgage assistance funds. Colorado appropriated $19.65 million to the program, while Pennsylvania allocated $150 million, and Illinois allocated $396 million. The Pennsylvania legislation provides assistance to renters and homeowners who either became unemployed or whose annual household income is reduced by 30 percent or more. The fund provides grants to homeowners and renters and covers 100 percent of their rent or mortgage—up to $750/month for renters and $1,000 for homeowners for a maximum of six months. The Illinois legislation reserves $100 million for areas disproportionately impacted by the pandemic. Utah enacted similar legislation (UT SB 3006), which established a fund of $20 million for residential housing assistance and $40 million for commercial rental assistance.
While the New Jersey legislature originally passed legislation (NJ S 2332) to establish a rental relief program, the bill was vetoed by Governor Phil Murphy. Instead, he created a program through executive action, and appropriated at least $100 million to rental assistance. Twenty percent of the program's funding is devoted to people with very low income who are homeless or at risk of homelessness and provides them with up to 12 months of rental assistance. The rest of the funding will be distributed on a lottery basis to households that earn below 80% of the area median income (AMI), were current on rental payments before March 1, 2020, and are able to prove they have been significantly impacted by COVID-19 through either layoffs, reduced work hours, or forced unpaid leave for childcare.
Legislators in New York (NY S 8419) enacted a bill that establishes a rental assistance fund of $100 million to provide aid to households that earn up to 80% of the area median income, had a rent burden both on March 1, 2020, and at the time of their application for assistance, and have experienced a loss of income during the coverage period. The program would cover the difference between a household rent burden (the amount of rent owed that is more than 30% of a tenant’s income) on March 1, 2020, and their rent burden at the time of their application for assistance.
Deferment of Rent
A bill backed by the landlord lobby in California (CA SB 1410), which passed the Senate but died in the Assembly, would have allowed landlords and tenants to enter into a “COVID eviction relief agreement.” In an agreement, the tenant could defer his or her rent for the entirety of the state of emergency and for an unspecified number of additional days following the state of emergency’s conclusion. The state would assume the debt burden, and provide the tenant until 2034 to repay the unpaid rent, or apply for loan forgiveness. In exchange, the landlord would receive ten years of tax credits equal to the unpaid amount and would have the opportunity to sell tax credits to investors. Landlords who enter into an agreement would be prohibited from taking an eviction action against the tenant during the state of emergency period.
Utility Assistance
Another bill in Colorado was enacted (CO HB 20-1412) that appropriated $4.8 million of funding from the CARES Act to provide direct utility bill payment assistance to low-income households facing economic hardship due to the pandemic.
Homelessness
Individuals and families experiencing or at risk of experiencing homelessness have a disproportionate risk of getting COVID-19. Without shelter, it is immensely difficult to self-isolate and take proper preventative measures like handwashing. According to the National Low Income Housing Coalition, people who are experiencing homelessness and contract COVID-19 are twice as likely to be hospitalized and two to three times more likely to die from the virus than the general public.
An encampment of unhoused people in San Francisco, CA
States have allocated money, often from CARES Act funds, to homeless shelters and assistance, and the legislative examples below are from states that allocated money in their budgets to homelessness directly in response to the pandemic. Please note that this is not inclusive of all legislation related to homelessness outside of the pandemic. Additionally, some of the above legislation establishing rental and mortgage assistance programs contains language that prioritizes distribution of funds to families at risk of homelessness.
Legislators in Alaska enacted legislation (AK SB 241) to provide financial assistance on a statewide, regional, or community basis as necessary to address or prevent homelessness caused by the pandemic.
The Pennsylvania legislature enacted a bill (PA HB 2510) that allocated $10 million for services for homeless residents. Similarly, lawmakers in Utah appropriated (UT HB 4001) $4.67 million from the CARES Act to the state’s Homelessness committee. Minnesota lawmakers passed legislation (MN HF 4531) that provides $15.2 million for additional shelter space and purchasing vouchers for motel and hotel rooms in order to allow homeless individuals to effectively shelter in place.
Broader Tenant Protections
2019 saw monumental movement for comprehensive tenant protections. Oregon became the first state in the nation to pass a statewide rent control bill, with California and New York adopting their own statewide legislation soon after. While the pandemic sidelined efforts to pass similar legislation in other states, several rent control and eviction protections bills were introduced across the country. Lawmakers in California and New York also introduced several pieces of legislation to strengthen their existing laws.
Repeal of Rent Control Preemption Laws
Legislators in at least four states introduced legislation that would repeal state bans on rent control legislation.
The Massachusetts legislature considered a bill (MA H 3924) that would have removed the state’s preemption of municipal rent control policies. The bill would have affirmatively allowed for the regulation of rents for multi-family housing and manufactured housing, condominium conversions, and no-cause evictions.
An apartment complex in Massachsetts
Lawmakers in Illinois introduced legislation (IL HB 255) that would have repealed the state’s 1997 Rent Control Preemption Act, which bans local units of government from controlling residential and commercial rents.
While several municipalities in New Jersey have implemented rent control, lawmakers introduced a statewide rent cap bill that did not pass (NJ A 1923). The bill would have established a cap on annual rent increases of 5 percent plus the percentage change in cost of living, or 10 percent—whichever was lower.
Legislators in Illinois (IL SB 3771) also introduced a bill that would have established statewide rent control and implemented a just-cause eviction protection for renters. The bill would have limited rent increases each year to 5 percent plus the change in cost of living, or 10 percent, whichever was lower, and limited legal evictions to nonpayment of rent and material breaches of a lease.
Strengthening Existing Legislation
New York legislators introduced several pieces of legislation to enhance tenant protections passed in 2019, in one of the boldest legislative efforts to protect renters in the nation. These bills included a just-cause eviction law (NY S 2892/A 5030), an expansion of the 2019 rent stabilization law (NY S 5040/A 7046), an end to landlord-friendly loopholes such as vacancy decontrol (NY S 2591/A 1198) and vacancy bonuses (NY S 185/A 2351), an end to permanent rent increases for capital improvements (NY S 3693/A 6322), and making preferential rents permanent (NY S 2845A/A 4349).
A recently enacted bill (CA SB 1190) in California would have strengthened enforcement mechanisms for the Tenants Protection Act of 2019. The bill would have directed city attorneys, district attorneys, or county counsel to prosecute violations of the legislation’s rent cap and just-cause eviction provisions, including awarding restitution and levying fines up to $20,000. However, this provision was stripped via amendment, and the bill as enacted focuses on the right of tenants to terminate tenancy based on a family member being a victim of a crime.
California activists rally for the #CancelRent movement in May 2020
A ballot measure that failed in California (Rental Affordability Act) would have expanded the state’s rent control laws. If passed, the measure would have reformed major sections of the Costa-Hawkins Act. The ballot measure would have extended the state’s rent regulations to all buildings over 15 years old, allowed for rent control on single-family homes when an owner owns more than two homes, and enacted limitations on rent increases after a tenant vacates a unit.
Rent Control for Manufactured Housing
Michigan lawmakers introduced a bill (MI HB 5569) that would have exempted manufactured housing parks from the state’s rent control ban. It would also created a rent cap only applicable to manufactured housing parks equivalent to the most recent annual change in the Consumer Price Index.
Three pieces of legislation were introduced in California (CA SB 999, AB 2895, AB 2690) that would have expanded rent regulations to manufactured housing. SB 999, which passed out of the Senate but died in the Assembly, would have required new manufactured housing leases to be covered by local rent control ordinances. AB 2690, which passed out of the Assembly but died in the Senate, would have repealed exemptions for manufactured housing from local rent regulation. AB 2895, which also passed out of the Assembly and died in the Senate, would have applied the same rent cap and eviction protections under the Tenants Protection Act to manufactured housing starting in 2021.
Looking Forward
Over the past few years, housing justice advocates have increasingly pushed for reinvestment and construction of publicly owned housing in the United States. In 2019, Homes Guarantee launched an effort to guarantee the right to safe and affordable housing with a plan to build 12 million social housing units across the country, reinvesting in existing public housing, protecting renters and bank tenants, paying reparations for centuries of racist housing policies, and ending land and real estate speculation.
On the federal level, Rep. Ilhan Omar has introduced the Homes for All Act (H.R.5244) to repeal the Faircloth Amendment, which prohibits the construction of new public housing units, and invest $1 trillion to construct 8.5 million publicly owned units and 3.5 million units of privately owned, local, permanently affordable housing.
This year, lawmakers in Maryland introduced groundbreaking legislation (MD HB 1149) that would have funded the creation of a new state social housing program in order to construct an estimated 2,000 units of permanently affordable, government-owned, mixed-income housing. While the legislation failed, it presented one of the first pieces of legislation to construct social housing at the state level.
Defending Our Democracy: State Solutions to Strengthen Election Security
American elections face dire and unprecedented security threats. Ahead of the 2016 election, Russia launched a two-pronged campaign to sow chaos and doubt into our democracy. Hackers “scanned” election systems in all 50 states and attempted to breach systems in at least 21 states—exposing major weaknesses in our election infrastructure, regulations, and personnel readiness. At the same time, Russian internet trolls orchestrated a divisive, digital disinformation campaign to agitate and misdirect the American public. Threats to American election security have evolved and proliferated since 2016 as enemies experiment with new tactics and inspire new malicious actors.
Declining public confidence is perhaps the greatest risk to our democracy’s health today and is a key objective of our adversaries. In a recent poll conducted for C-SPAN, 58 percent of voters expressed concern that foreign governments pose a threat to American elections, and a mere 31 percent of Americans have confidence that the government has done enough to protect elections from foreign interference. Conspiracy theories of vote rigging, often elevated by President Trump, have exacerbated negative perceptions of U.S. election integrity, particularly in the aftermath of close races, like Kentucky’s 2019 gubernatorial election, or administrative bungles, like the 2020 Iowa caucus. Whether perceived or legitimate, concerns that votes will not be counted accurately could negatively impact participation and increase the chance that voters and candidates will not accept the outcome of our elections.
In the face of these threats, states have largely been left to fend for themselves. Despite efforts to secure election systems and update technology across the country, state and local officials on the frontlines of our democracy are not uniformly prepared to defend against these attacks in 2020 and beyond. Federal legislation has been introduced to improve election security— offering more funding for states, mandating post-election audits, streamlining information sharing, and imposing stronger deterrents and penalties—but these efforts have generally stalled or failed.
In the absence of a strong, coordinated response from Washington, D.C., to protect our democracy, this crisis requires bold action from the states. While no one state can combat the multi-faceted and evolving set of security challenges we face, state legislators and administrators can work together as a network and lead by example to protect our elections, inspire public confidence, and spur stronger federal action. State legislators play a critical role, and the foundation of our electoral system relies on their active, informed, and vigilant engagement in election security. Whether using their platform to draw attention to solutions, supporting administrators, or passing legislation, state lawmakers have a responsibility to help strengthen election security and protect the present and future of American democracy. This brief aims to help state legislators meet this challenge.
To connect with experts, advocates, or peer legislators advancing the solutions covered here, or to receive support on legislative research, communications, or strategy, please contact the SiX Democracy Team at democracy@stateinnovation.org.
State Efforts To Protect The Affordable Care Act
After a decade of implementation, the Affordable Care Act (ACA) has made health insurance and health care more available and affordable for tens of millions of people — many of whom will rely heavily on its provisions to deal with the public health crisis brought on by COVID-19. In fact, some states have begun to reopen their health insurance exchanges to increase coverage during the coronavirus outbreak.
No matter what we look like, where we live, or what’s in our wallets, this pandemic reminds us that at our core, we are all just human. As our nation and our communities struggle to respond to this national emergency, we are reminded how important health care is to our long-term success. Our own health depends on the health of the person next to us, and the person next to them. Ensuring others can access care is how we take care of ourselves.
Over the last four years, the ACA has been challenged by the Trump Administration. When Congress did not overturn the legislation, the Administration simply refused to implement key parts of the law, weakened it through executive order, and sought to challenge it through the courts. Even in the midst of this crisis, Trump said that he is still trying to overturn the ACA, suing in court to take health care coverage away from tens of millions of Americans at a time when they need it most. If successful, this lawsuit would take coverage away from 20 million Americans and end protections for 130 million people with preexisting conditions. The uncertainty and misinformation continue to create dangerous confusion that divides us at this critical time.
State legislators across the country have taken action to protect and defend the health of their communities. They have joined together to implement proven solutions so that whether white, Black, Latino, or Asian, native or newcomer, everyone can get the care they need.
This memo outlines the attacks on the ACA, policy solutions at the state level, key messages, and additional resources for legislators.
Trump Administration Attacks on the ACA
The Trump Administration, with a Republican Congress, took actions to destabilize the ACA by increasing the risk of adverse selection; two examples of this include effectively ending the individual mandate by setting it at $0 and expanding short-term limited-duration (STLD) plans from a stopgap insurance to a cheaper and less regulated alternative to an ACA plan.
The table below from the Center on Budget and Policy Priorities highlights some of the actions the Administration has taken to undermine the health care law.
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State Legislation to Defend the ACA
Through work with state and national health advocacy partners, legislators have led the way to protect key ACA components so that everyone can stay covered. The following are examples of relevant legislation.
Annual or Lifetime Limits: States stopped insurers from re-imposing lifetime limits on benefits, which before the ACA forced many insurance holders to choose between bankruptcy and gettingthe care they needed.
New Jersey, Vermont, and Washington passed legislation to prohibit a health insurer from imposing annual or lifetime limits on essential health benefits or total benefits.
Preexisting Conditions: At least 14 states have taken steps to ensure health insurance providers cannot deny coverage to individuals with preexisting conditions.
Delaware, Maine, Vermont, and Washington have enacted legislation to prohibit preexisting condition provisions in health insurance policies and to guarantee issue and availability of coverage.
Regulation of Non-ACA-Compliant Plans: States must regulate more than just the plans in their ACA marketplace, as non-ACA compliant-plans increase the risk of adverse selection and create a loophole for insurers to get around state ACA protections. Regulation of short-term limited-duration (STLD) plans have been loosened at the federal level, and it is up to the states to provide strong regulations.
California prohibits health insurers from offering STLD plans in the state.
Hawaii does not allow STLD plans to be issued to anyone who was eligible to purchase a plan during open enrollment on the ACA marketplace.
Maryland limits STLD plans to no more than three months and does not allow them to be extended or renewed.
Expanded Premium Subsidies: States have enacted legislationto expand the low-income population eligible to receive premiumassistance subsidies.
Massachusetts and Vermont subsidize individuals with incomes up to 300 percent of the federal poverty level (FPL).
Washington subsidizes individuals up to 500 percent of the FPL.
California provides about 25% of their advanceable premium assistance for individuals between 200 and 400 percent of the FPL and 75% allocated to individuals between 400 and 600 percent of the FPL.
Cost Sharing: State legislation limits cost sharing, which includes deductibles, copayments, andother non-premium related expenses.
Maine, New Jersey, and Vermont have forced insurers to comply with cost sharing limits to the ACA dollar amounts on a fixed date.
Washington applied a total dollar cap — $8,200 for self- only coverage and $16,400 for coverage that includes more than one individual — all indexed to the state’s average increase in per-person premiums.
Essential Health Benefits: States can ensure essential health benefitsremain covered.
Maine, New Jersey, and Washington enacted legislation to protect emergency care, maternity and newborn care, mental health and substance abuse treatment, prescription drugs, preventative care and wellness programs, and more.
State Individual Mandate: Reinstating the individual mandate at the state level can provide an incentive for young and generally healthy individuals to remain in an individual insurance pool and lower premiumsby preventing adverse selection.
Marketplace Competition: A handful of states either require certain insurers to participate or tie insurer eligibility for participation in public health plans (e.g., Medicaid, CHIP, and plans for public employees) to participation in the state’s ACA marketplace.
Massachusetts, which as a state has one of the highest ACA insurer participationnumbers, requires health insurance carriers with 5,000 or more enrolled individuals (including dependents) to “annually to file a plan with the connector for its consideration, which meets the requirements for the connector seal of approval.”
Anti-Discrimination: In 2019, the Trump Administration took steps to significantly weaken anti discrimination provisions within Section 1557 of the ACA. This would negatively impact LGBTQ rights (with potentially the greatest impact to transgender individuals), women’s reproductive rights, and language access for individuals with limited English proficiency.
Hawaii, along with 21 other states, already has transgender protections codified into state law, so health insurance policies cannot discriminate based on actual or perceived gender identity.
Oregon passed a law in 2019 to add broad anti-discrimination language to their insurance code in order to prevent discrimination based on actual or perceived race, color, national origin, sex, sexual orientation, gender identity, age, or disability.
Rating Factors: States have acted to make sure insurance companies cannot raise premium rates based on gender, health status, or occupation/industry.
Delaware and Maine have passed laws to regulate permissible rating factors.
Messaging
As our nation and our communities struggle to respond the COVID-19 pandemic, it is clear that our own health depends on the health of the person next to us, and the person next to them.
As we celebrate the tenth anniversary of the Affordable Care Act, which expanded care to millions of Americans, we need leaders who will step up to make sure that everyone white, Black, Latino, or Asian, native or newcomer — has access to care.
In the midst of the COVID-19 crisis, the Trump Administration continues attempts to overturn the health care law. The lies, confusion, and misinformation from President Trump are dangerous.
Now is the time for leaders in state legislatures to unite across differences and make policy choices that help everyday people — not the richest 1% and a handful of corporations.
We must ensure that everyone has access to affordable, quality care by creating a health care system that works for everyone — no exceptions.
The Family and Medical Leave Act of 1993 (FMLA) was a momentous piece of federal legislation that secured the right of working Americans to take up to 12 unpaid weeks off of work for the birth of their child, to care for their newborn or newly adopted child, to care for a loved one with a serious illness, or to respond to their own serious illness. Its passage represented a consensus that hardworking individuals should not lose their jobs if they become seriously ill, and new parents should be given time to recover from pregnancy and bond with their new child.
However, nearly 30 years later, our country has fallen behind the rest of the world in paid leave protections. Approximately 40% of Americans do not qualify for leave under the FMLA at all, and many of those who are covered cannot afford to take unpaid leave without falling into financial distress. The United States remains the only wealthy nation in the world that does not guarantee any form of paid leave.
For working families who are living paycheck to paycheck, lack of access to paid family and medical leave policies can have dramatic effects. For example, in the year following a child’s birth, women who are able to take paid leave are 39% less likely to need public assistance than those who did not take leave. And a study on the impact of California’s paid family leave program found that paid family and medical leave decreased the risk of poverty for new mothers by just over 10%. Ultimately, nearly all workers need to take time away at some point to deal with a serious personal or family illness or to care for a new child.
Laws providing paid family and medical leave allow workers to meet these needs without jeopardizing their economic security, which strengthens working families and thereby grows the economy.
Our Policy Playbook is a summary of resources that we have compiled from state and national advocates, organizers, and leading policy organizations across the country. Here you will find communications and messaging guidance, a menu of policy solutions, legislative language, and national organizations and experts who can support your efforts.
Ending Prison Gerrymandering
During the decennial census, the Census Bureau, state, and local governments have traditionally counted incarcerated individuals as residents of the areas where they are imprisoned, rather than in their home communities. This data is then used for redistricting—resulting in distorted local and state representation and hidden transfers of political power to communities that host prisons. By inflating the apparent size and therefore the political influence of areas with incarceration facilities, prison gerrymandering violates our constitutional right to equal political power based on population size. This problem is especially urgent and harmful in today’s era of mass incarceration and limits the voices and power of communities of color.
Despite advocacy to the change the practice, the 2020 Census will once again count prisoners where they are incarcerated. While the Census Bureau is best positioned to end prison gerrymandering permanently and on a national scale, state action is needed to address this problem in the meantime— particularly ahead of the next redistricting cycle.
As of January 2020, seven states had enacted legislation to prohibit prison gerrymandering and count incarcerated individuals at their last known home address in the state: California (2011), Delaware (2010), Maryland (2010), Nevada (2019), New Jersey (2020), New York (2010), and Washington (2019). Colorado, Michigan, Tennessee, and Virginia have addressed prison gerrymandering at the local level, either by barring or discouraging county and local governments from counting prison populations when drawing local districts (e.g., for town or school board elections).
State legislators have a crucial role in advancing accurate and equitable redistricting that strengthens the voices of marginalized black, white, and brown communities. To help end the harmful practice of prison gerrymandering, the State Innovation Exchange (SiX) and Prison Policy Initiative have put together the following brief with messaging guidance, policy design considerations, practical lessons on bill drafting, coalition building, and implementation, and example legislation.
Surprise medical billing refers to when a consumer is unaware that health care services will be charged at out-of-network rates, whether by their insurer or by the out-of-network provider. For example, if a patient receives emergency care at an out-of-network hospital or care from an out-of-network provider at an in-network hospital, they could receive a surprise medical bill.
As we face the first global pandemic of the 21st Century, our nation confronts a health care system that is not prepared to deal with an infectious disease at this scale. One of the many challenges we face will be patients who delay or defer care because they are unsure if their visit to a testing facility, urgent care center or emergency room will result in a surprise bill, not covered by their insurance.
57% of patients have experienced a surprise medical bill
2018 University of Chicago survey
Surprise medical bills have two main components, according to a 2019 Health System Tracker brief from Peterson Center on Healthcare and the Kaiser Family Foundation:
The higher amount a patient owes due to the difference in cost-sharing levels between in-network and out-of-network services. “For example, a preferred provider health plan (PPO) might require a patient to pay 20% of allowed charges for in-network services and 40% of allowed charges for out-of-network services. In an HMO or other closed-network plan, the out-of-network service might not be covered at all.”
An additional amount the physician or other provider may bill the patient directly, which is known as “balance billing.” “Typically, health plans negotiate discounted charges with network providers and require them to accept the negotiated fee as payment-in-full. Network providers are prohibited from billing plan enrollees the difference (or balance) between the allowed charg and the full charge. Out-of-network providers, however, have no such contractual obligation. As a result, patients can be liable for the balance bill in addition to any applicable out-of-network cost sharing.”
The problem is widespread: A 2018 University of Chicago survey found that 57% of respondents had experienced a surprise medical bill. Additionally, this survey found that 86% of all respondents blamed health insurance companies and 82% blamed hospitals for surprise medical bills. A large study published in 2020 that looked at over 347,000 surgical patients found that over 20% had incurred out-of-network charges.
The problem has serious consequences, especially for communities of color: Almost half of respondents in a Commonwealth Fund survey said that they could not cover an unexpected medical bill of $1,000 within 30 days. And this can have a disproportionate impact on marginalized communities, with Black (63%) and Hispanic (59%) respondents reporting higher inability to cover such a bill compared to Non-Hispanic White respondents (40%). This issue also impacts the overall cost of employer-sponsored insurance plans, according to a December 2019 article in Health Affairs.
Wage theft is a catchall term for a range of situations in which an employer fails to pay an employee. It can take many forms—from employers paying employees less than the minimum wage or failing to pay overtime to withholding tips, not providing employees with their final paycheck, or requiring employees to work off the clock. These forms of theft hurt working families by threatening basic living standards and causing economic instability, reducing tax revenues, and harming local economies and businesses that follow the rules.
To improve upon federal protections, states have enacted legislation to address wage theft, including increasing the cost to employers for violating wage and hour laws, targeting bad actors to prevent repeat offenses, empowering state and local wage enforcement authorities, and improving small claims court administrative processes for wage theft cases. While these measures have begun to address the problem in certain states, wage theft remains a significant issue in most of the country, with one study finding that 68% of respondents had experienced at least one pay-related violation in the last week alone.
Wage theft covers a variety of infractions that occur when working people do not receive their legally or contractually promised wages.
Our Wage Theft “Policy Playbook” is a summary of resources that we have compiled from state and national advocates, organizers, and leading policy organizations across the country. Here you will find communications and messaging guidance, a menu of policy solutions, legislative language, and national organizations and experts who can support your efforts.
As a reminder, legislators are always encouraged to work with state partners to assess the local and state dynamics and to craft the strongest and most feasible legislation for their state—ensuring alignment with the work of groups in the field. On a related note, this resource is not meant to supersede working with advocacy organizations and policy experts to chart the most effective path for introducing such legislation. To get connected to state and national groups or individual experts on this topic, or to receive support on legislative research or drafting, please contact SiX Action at: helpdesk@stateinnovation.org.
Student Debt Reform in the 2019 State Legislative Sessions
Tuition and fees at both public and private colleges and universities have never been higher, and the cost of loans taken out by American students for higher education has never been greater. Close to 70 percent of college students graduate with debt, and the collective student loan debt in the United States in 2019 is now over $1.5 trillion. Many of the student debt holders face financial instability, hold down multiple jobs to make ends meet, and are forced to delay financial investments like homeownership and retirement savings. This debt has a wide effect not just on the student debt holders, but across the economy.
Adding to concerns over the student debt crisis are widespread reports of potential predatory lending practices (including the use of subprime loans with expected default rates as high as 92 percent) by student loan providers across the United States. In addition, borrowers face potentially unethical behavior from for-profit colleges and universities, which account for a disproportionately high share of student debt. Students who attend for-profit institutions are at higher risk of defaulting on their loans. In fact, 44 percent of borrowers at these schools faced some type of loan distress five years into repayment. These for-profit institutions are also much more likely to declare bankruptcy (95.5% of colleges that have closed since 2013 were for-profit), leaving students without access to a higher education or even credits that can be transferred to other schools.
The Growing Shadow of State Interference: Preemption in the 2019 State Legislative Sessions
Today, many of America’s cities, towns, and counties have less power than they did at the start of the year to protect the health and safety of their communities or to respond to the unique needs and values of their residents. That’s because between January and June 2019, state legislatures across the nation continued a troubling trend of passing more laws forbidding or “preempting” local control over a large and growing set of public health, economic, environmental, and social justice policy solutions. This legislative session, state lawmakers made it illegal for locally-elected officials to enact a plastic bag ban in Tennessee, raise revenues in Oregon, regulate e-cigarettes in Arkansas, establish minimum wages in North Dakota, protect county residents from water and air pollution produced by animal feedlots in Missouri, or protect immigrants from unjust incarceration in Florida.
Some states this session went further, with bills aimed at abolishing core powers long held by cities, including their ability to negotiate and set employment terms with their own contractors, enact and implement local land use laws, and control their own budgets and finances.
From 2011 – 2019, the quantity and reach of new preemption laws has skyrocketed.
But the tide may be turning. The 2019 legislative session also saw an unexpected and unprecedented number of bills filed to repeal state preemption laws and return legal authority for local decision-making in several states. Bills to repeal state preemption of local minimum wage laws, rent control, tobacco tax, oil and gas well regulation, plastic bag bans and broadband were introduced in legislatures across the country. Earlier this year, Colorado became the first state to legislatively repeal minimum wage preemption, countering a decade-long trend of state overreach. Also, in 2019, cross-issue coalitions working at the grassroots succeeded in killing or weakening preemption bills and more state and local lawmakers pushed back on state interference and became public champions of local democracy. This end-of-the 2019 session report, a joint product of the Local Solutions Support Center (LSSC) and the State Innovation Exchange (SiX), is not an encyclopedic scan of every state preemption bill passed in 2019. It is, instead, an illustrative look at the preemption trends observed this session.
