The other day, while waiting in line at my Atlanta neighborhood grocery store, practicing my best social-distancing techniques among face-masked shoppers scavenging depleted food shelves, I took a good look at the people who were ringing up our precious quarantine-preparedness purchases.
They were mostly older black women. They wore no gloves, no masks and there was a noticeable lack of disinfectant hand sanitizer or wipes. In the midst of this pandemic, I expect they are probably working extra shifts and must spend those long hours interacting with strangers who could be infected, yet they have no protections.
This is Georgia. There is no state-required paid sick leave, but there is a state law that prevents local governments from enacting their own paid sick leave laws. That means these cashiers can’t afford to become ill. If they do, they will feel pressure to come to work anyway, rather than risk being fired or missing a paycheck. They are likely already living paycheck to paycheck.
What the Privilege Divide Looks Like During a Pandemic
The new coronavirus has underscored harsh health inequities in America. Some people can afford to protect their health during a pandemic, while others cannot. Some can sleep easily knowing they have a roof over their heads, while others fight eviction or have no home where they can shelter in place. Some order food delivery to continue feeding their families, while others skip meals so their kids can eat.
Often, the privilege divide falls along racial lines. The typical white family has 10 times the wealth of the typical black family and more than seven times the wealth of the typical Latino family.
Across the country, state preemption laws like Georgia’s maintain and even strengthen that divide by disempowering local governments, particularly those that represent communities of color.
It’s an ugly trend, and these days, with the coronavirus pandemic, it looks even uglier.
More than 1,000,000 people living in America are infected, and the number grows daily. We have no idea how many more will fall ill over the coming days, weeks and months.
Preemption Makes Life Harder for Workers and Families
And yet, because of preemption, workers in 23 states—many of them in low-wage, part-time or “gig” jobs—don’t have paid sick time. These are our grocery clerks, food deliverers, Uber or Lyft drivers. They are the essential workers keeping our country functioning during this health crisis and this puts them at higher risk for catching and spreading the coronavirus.
An estimated 21 million Americans don’t have broadband access. Yet 19 states have preemption laws that block or ban communities from either creating their own networks or otherwise expanding broadband competition. This is especially tough on rural communities where broadband companies have not delivered on promises to provide access.
What does that mean now for the millions of people who are sheltering at home? Families can’t order groceries or entertain themselves online; they can’t use telemedicine, either. Kids can’t engage in e-learning at home while their schools are closed; grandparents are isolated from their families.
Coronavirus and Preemption of Local Tobacco Control
There’s another, insidious effect of preemption. Tobacco use causes lung disease, and there’s a growing body of evidence that e-cigarette use, or vaping, does as well.
“Because it attacks the lungs, the coronavirus that causes COVID-19 could be an especially serious threat to those who smoke tobacco or marijuana or who vape,” Nora Volkow, director of the National Institute on Drug Abuse said. “It is therefore reasonable to be concerned that compromised lung function or lung disease related to smoking history … could put people at risk for serious complications of COVID-19.”
And yet 23 states have industry-backed laws preempting local ordinances related to youth access to tobacco, including 12 that ban local restrictions on selling tobacco products to young people. Some of these laws apply to e-cigarettes as well.
In essence, these laws put youth at risk for developing lung disease, including scarring of the lungs, which makes them more vulnerable to the effects of COVID-19. Right now, there are people who might have been protected from this risk if their states had passed laws, or allowed communities to pass laws, that have been proven to reduce youth tobacco use and prevented youth from becoming addicted to tobacco products. And because tobacco companies have marketed strategically to racial and ethnic minority groups for decades, those most affected are likely to be people of color.
The Impact of Health Disparities
We’re seeing that places with serious health disparities are particularly vulnerable to the effects of COVID-19. Louisiana is known for its high rates of chronic disease; it also has one of the nation’s largest pay gaps—partly because of state laws preempting minimum wage increases and paid sick leave. Now it has the nation’s highest COVID-19 death rates. Of the Louisianans who died from COVID-19, 41% had diabetes, 31% had chronic heart disease and 28% were obese, according to the state health department.
“Because of the demographics of our unhealthy population, and in New Orleans, in particular, we do have a large number of patients who have these conditions and that is what puts the patients in a higher risk category, even if they are of a younger age,” said James Diaz, MD, of the Louisiana State University Health School of Public Health. “You don’t necessarily have to be older than 65, for example; you could be younger and have one of these coexisting medical conditions.”
Success Against Preemption Misuse
But there is good news. Municipalities are fighting back—and many are winning.
In Colorado, for example, municipalities took a stand against preemption of local tobacco regulation, forgoing thousands of dollars in state tobacco tax revenue in order to protect their kids. Their principled stance generated momentum to overturn the state’s decades-old tobacco preemption law in 2019. Since then, more than 40 local tobacco control campaigns have launched in the state, including nine successful tobacco tax ballot initiatives.
In Texas, advocates successfully defended local laws mandating paid sick leave from state preemption. Business groups hope the courts will rule in their favor, but for now paid sick leave ordinances in Dallas, San Antonio and Austin stand.
During this coronavirus pandemic, many municipalities are declaring emergency eviction moratoriums, but some states, like California, have “unlawful detainer laws” that preempt those kinds of moratoriums. Nevertheless, the cities of San Francisco, Santa Monica and San Jose declared their own eviction moratoriums; afterward, Gov. Gavin Newsom issued an executive order allowing local governments to impose eviction protections for tenants unable to pay rent because of the pandemic.
Even in broadband access, we’re seeing progress. Eight years after banning cities and towns from creating their own high-speed networks, Arkansas’ Republican legislature approved a repeal in 2019. North Carolina’s legislature is considering a similar repeal of its broadband preemption law.
The Urgent Need to Support Local Democracy
Now, more than ever, communities must have the power to craft and implement their own solutions to challenges presented by attempts to contain COVID-19. That’s why these kinds of wins are so inspiring. They show what can happen when local advocates and governments join forces to overturn unfair preemption laws that undercut public health and civil liberties.
Resources are available to help you take action. Voices for Healthy Kids has developed a preemption toolkit for advocacy in defense of local government power. The Local Solutions Support Center (LSSC) is another great resource for combating preemption misuse and strengthening local democracy. Check out LSSC’s new tool for assessing whether your local government has legal authority to enact its own policies in response to coronavirus.
The need to support local agency and innovation goes beyond this health crisis. We must think not only about the urgency of today, but what’s right for the future.
Laws that undermine the health and civil rights of children and families must not be allowed to stand.
Not now, during the coronavirus crisis. Not ever.
Let’s all work together to protect our communities from unfair preemption laws.