Thursday’s Supreme Court decision to prevent the Occupational Safety and Health Administration from requiring large employers to ensure their workers are either immune to the coronavirus or masked at work and to be tested weekly was a setback for America’s efforts to halt the pandemic. The six Republican-appointed judges are helping to prolong the pandemic, endangering workers and widening the labor shortages that have hurt the economy.
But the judges may also have opened the door to a more comprehensive rule that would better protect the nation’s workers, a rule that OSHA should have passed months ago.
The court’s decision shows some glaring misunderstanding of the laws that govern the responsibilities of the Occupational Safety and Health Administration. There is no doubt that the Covid-19 pandemic fits the criteria for the hazardous working conditions the agency was created to address, and that some workers, due to the nature of their jobs, face a greater risk of contracting Covid-19 disease than the general public.
However, the judges, in the court’s majority opinion, conceded that Covid-19 is in fact a risk in high-risk workplaces. We don’t doubt, for example, that OSHA could regulate researchers working with the Covid-19 virus. Also, the Occupational Safety and Health Administration (OSHA) can regulate the risks associated with working in particularly crowded or cramped environments. But the risk present in these workplaces is different in degree and type from the daily risk of contracting Covid-19 that everyone faces.”
Thus, it appears that a majority of at least six judges would consider a more traditional risk-based rule, which would base protection on the level of risk to workers. Acknowledging that there are situations in which OSHA can regulate exposure to Covid-19 is a path forward for OSHA to do what Congress has directed the agency to do when workers face a new and serious danger: issue an emergency standard that requires employers to control the risk so that their workers do not get sick.
Questions and asks about the Covid-19 vaccine.
OSHA has already written a rule very close to meeting these standards. The day after his inauguration, President Biden issued an executive order directing OSHA to consider issuing an emergency temporary standard that would protect all American workers from Covid-19.
The Occupational Safety and Health Administration (OSHA) developed a risk-based standard for all workers, but the standard eventually released was narrower, and only included health care workers. (It was withdrawn last month.)
When the Occupational Safety and Health Administration (OSHA) released the Standard for Health Care Workers, in June 2021, the number of Americans vaccinated was on the rise and the number of infected fell. The White House may have been hoping that the country could simply vaccinate its way out of the pandemic. When the surge in the delta variant, combined with the growing enthusiasm for anti-vaccines, threatened to frustrate those hopes, the Biden administration doubled down on vaccines, including a vaccination or testing mandate that the Supreme Court had just rescinded.
OSHA’s way forward to protect workers from Covid-19 is clear. First, the agency must get the previous OSHA standard out of the desk drawer, dust it off, update the data, and make any adjustments to ensure it fits the court’s new risk-based proposal and sends it to the White House. The standard should include all workers in high-risk jobs, not just those employed by large employers. Second, the Occupational Safety and Health Administration (OSHA) must rescind its withdrawal of the health care worker standard or issue a new standard immediately. Of course, keeping health care workers safe should remain a top priority.
The Occupational Safety and Health Act directs the Occupational Safety and Health Administration to ensure safe workplaces for state workers. This means safety from falls, fires, machinery, toxic chemicals, and infectious diseases. There is still much work to be done.
Omicron may be “milder” than previous variants, but Covid-19 still poses a serious risk to workers. Confirmed infections among nursing home employees have reached the highest levels since the Centers for Disease Control and Prevention began reporting data in the spring of 2020. We must also prepare for the next variable.
David Michaels is a professor at the Milken Institute of Public Health at George Washington University. He served as Assistant Secretary of Labor for the Occupational Safety and Health Administration from 2009 to 2017. Jordan Barab served as Deputy Assistant Secretary of Labor for the Occupational Safety and Health Administration from 2009 to 2017.
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