The Supreme Court’s decision on Thursday to block the Occupational Safety and Health Administration from requiring large employers to make sure that their workers are either vaccinated against the coronavirus or masked at work and tested weekly was a setback for America’s efforts to stop the pandemic. The six Republican-appointed justices are helping to prolong the pandemic, endanger workers and extend the labor shortage that has disrupted the economy.
But the justices may also have opened the door for a more comprehensive rule that will better protect the nation’s workers, and it is one that OSHA should have issued months ago.
The court’s decision displays some glaring misunderstandings of the laws governing OSHA’s responsibilities. There is no question that the Covid-19 pandemic fits the criteria for the dangerous working conditions the agency was created to address, and that some workers, because of the nature of their jobs, face a higher risk of becoming ill with Covid-19 than the general public.
However, the justices, in the court’s majority opinion, did acknowledge that Covid-19 actually is a hazard in high-risk workplaces. “We do not doubt, for example, that OSHA could regulate researchers who work with the Covid-19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting Covid-19 that all face.”
Thus, there appears to be a majority of at least six justices who would consider a more traditional risk-based rule, which would base protections on the level of risk that workers experience. The acknowledgment that there are situations where OSHA can regulate Covid-19 exposure presents a path forward for OSHA to do what Congress instructed the agency to do when workers face a new, grave danger: Issue an emergency standard requiring employers to control the hazard so that their workers don’t get sick.
OSHA has already written a rule that is very close to meeting these criteria. A 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.
OSHA did develop a risk-based standard for all workers, but the standard that was ultimately issued was narrower, covering only health care workers. (It was withdrawn last month.)
When OSHA issued the standard for health care workers, in June 2021, the number of vaccinated Americans was rising and infection numbers were falling. The White House may have hoped that the country would be able to simply vaccinate its way out of the pandemic. When the surge of the Delta variant, combined with growing anti-vaccine fervor, threatened to dash those hopes, the Biden administration doubled down on vaccines, including the vaccinate-or-test mandate that the Supreme Court just struck down.
OSHA’s path forward to protecting workers from Covid-19 is clear. First, the agency should take the previous OSHA standard out of the desk drawer, dust it off, update the data, make any tweaks to ensure it fits the court’s new suggestion that it be risk-based and send it over to the White House. The standard should cover all workers in higher risk jobs, not only those employed by large employers. Second, OSHA should rescind its withdrawal of the standard for health care workers or immediately issue a new one. Keeping health care workers safe must, of course, remain a top priority.
The Occupational Safety and Health Act directs OSHA to ensure safe workplaces for the nation’s workers. That means safe from falls, fires, machines, toxic chemicals and infectious diseases. There is still much work to be done.
Omicron may be “milder” than previous variants, but Covid-19 still presents a serious risk to workers. Confirmed infections among nursing home staff are at the highest levels since the Centers for Disease Control and Prevention started reporting the data in the spring of 2020. We must also prepare for the next variant.
David Michaels is a professor at the George Washington University Milken Institute School of Public Health. 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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