The Supreme Court, in a predictable 6-3 decision, blocked OSHA’s Emergency Temporary Standard (ETS) that required employees in businesses with 100 or more employees to either be vaccinated or regularly tested and masked. Dissenting were the three Justices appointed by Democratic Presidents: Breyer, Sotomayor and Kagan. The majority stated that the Occupational Safety and Health Act (OSHAct) “plainly” does not authorize the vaccine or masking requirements. Calling the OSHA standard no “everyday exercise of federal power” they labeled it “instead a significant encroachment into the lives—and health—of a vast number of employees.” The argued that in a situation where an agency is authorized to “exercise powers of vast economic and political significance,” Congress must “speak clearly.” The majority argued that it is not the responsibility of OSHA to weight to costs and benefits of the standard, but rather “the responsibility of those chosen by the people through democratic processes” — in other words, Congress.
It Could Have Been Worse
A possible silver lining – and direction forward — in this decision is that the Court did not “deconstruct the regulatory state” as former Trump advisor Steve Bannon had desired. Instead of ruling that the Executive Branch has no authority to protect workers (or consumers or the environment), the majority basically acknowledged that OSHA has authority to protect workers who face heightened risks of contracting COVID-19 in the workplace, but that requiring a vaccination (which is something OSHA has never done) and applying it to every worker (in businesses with 100 or more employees) was a bridge too far.
That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible. 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. OSHA’s indiscriminate approach fails to account for this crucial distinction—between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an “occupational safety or health standard.”
Is COVID-19 a Workplace Hazard?
The main fallacy in the majority’s argument is their insistence that the OSHA standard was a public health measure and not a workplace measure. Stating that the OSHAct clearly does not authorize OSHA to be an overall public health agency (despite the fact that Congress gave it express authority to regulate the health of workers), the court called the standard a “public health measure,” rather than a “workplace safety standard.” (emphasis in original). The Court argues that
the Act empowers the Secretary to set workplace safety standards, not broad public health measures….Confirming the point, the Act’s provisions typically speak to hazards that employees face at work. And no provision of the Act addresses public health more generally, which falls outside of OSHA’s sphere of expertise….It is the text of the agency’s Organic Act that repeatedly makes clear that OSHA is charged with regulating “occupational” hazards and the safety and health of “employees.”
The justices argue that COVID-19 presents a “universal risk” in schools, homes, sporting events, etc., and
That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.
But the justices fail to understand that workers — almost every worker — is at higher risk of contracting COVID-19 in the workplace that the average American. And regulating workplace exposure is not the same as regulating “the hazards of daily life.” The justices are wrong in stating that there are only two categories of people at risk: high risk workers (for which OSHA could issue vaccine requirements) and everyone else (whose protection falls under the umbrella of “public health.) The other category is other workers — who are at much higher risk of contracting COVID-19 than the general public.
But the justices fail to understand that workers — almost every worker — is at higher risk of contracting COVID-19 in the workplace that the average American.
Breyer, Sotomayor and Kagan, who dissented, argued forcibly that in workplace environments “more than any others, individuals have little control, and therefore little capacity to mitigate risk. COVID–19, in short, is a menace in work settings.” As Justice Kagan so accurately described in the January 7 hearing, there is another category of at-risk persons: workers who have no control over their working conditions:
The combination of lots of people all going into one indoor space and having to deal with each other for 8 hours or 10 hours a day in those settings. The combination of environment and the people that are in that environment create a risk. I would think that workplace risk is about the greatest, least controllable risk with respect to COVID that any person has.
Everything else, a person can control. You can go to a baseball game or not go to a baseball game. You can decide who you’re going to the baseball game with. But you can’t do any of that in workplaces. You have to be there, you have to be there for 8 hours a day. You have to be there in the exact environment the workplace is set up with. You have to be there with a bunch of people you don’t know and who might be completely irresponsible. Where else do people have a greater risk than at the workplace?
And not only did the Court argue that the OSHA standard is not an occupational standard, the court also argued that because OSHA had never done this before, they couldn’t do it now:
It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace. This “lack of historical precedent,” coupled with the breadth of authority that the Secretary now claims, is a “telling indication” that the mandate extends beyond the agency’s legitimate reach.
The threat of COVID is tethered to a workplace because workers are tethered to the workplace; a workplace over whose environment they have no control.
But, of course, in the 50 years of OSHA’s existence, we’ve never had a world-wide (or nation-wide) pandemic that affects all workers — and as I mentioned above — affects all workers (high, middle and low risk) much more than it affects the general public. And really, how could one have anticipated in 1970 a pandemic that wouldn’t have hit workers for 50 years? That’s why Congress gave OSHA the power to issue Emergency Temporary Standards.
As the dissenting Justices reminded us all:
The Standard responds to a workplace health emergency unprecedented in the agency’s history: an infectious disease that has already killed hundreds of thousands and sickened millions; that is most easily transmitted in the shared indoor spaces that are the hallmark of American working life; and that spreads mostly without regard to differences in occupation or industry. Over the past two years, COVID–19 has affected—indeed, transformed—virtually every workforce and workplace in the Nation.
It is perverse, given these circumstances, to read the Act’s grant of emergency powers in the way the majority does—as constraining OSHA from addressing one of the gravest workplace hazards in the agency’s history. The Standard protects untold numbers of employees from a danger especially prevalent in workplace conditions. It lies at the core of OSHA’s authority. It is part of what the agency was built for.
In other words, contrary to what the Court’s majority wrote, the threat of COVID is tethered to a workplace — because workers are tethered to the workplace; a workplace over whose environment they have no control.
“The Standard protects untold numbers of employees from a danger especially prevalent in workplace conditions. It lies at the core of OSHA’s authority. It is part of what the agency was built for.” – Justices Breyer, Kagan and Sotomayor
Health Care Worker Mandate Survives
On a brighter note, by a narrow 5-4 decision, the Court allowed a vaccine mandate for health care workers issued by the Centers for Medicare and Medicaid services to stand. The court said that the vaccine mandate for health care workers was, unlike the OSHA regulation, justified by the “spending clause” of the Constitution, which allows the federal government to impose conditions when it provides funding. The CMS requirements apply only to those facilities that receive Medicaid and Medicare funding. And, of course, the CMS regulation protects patients in hospitals and nursing homes who may be exposed to infected health care workers.
What’s Next for Employers?
Non-health care employers now have the “freedom” to decide how best to protect their workers. They can require vaccinations, require testing, require masks, require distancing or provide more ventilation. Or they can choose to do absolutely nothing to protect their employees. Freedom. And actually, even that isn’t true, because several states have actually taken away employers’ freedom to protect their workers by forbidding them from issuing mask or vaccine mandates.
Non-health care employers now have the “freedom” to decide how best to protect their workers. They can require vaccinations, require testing, require masks, require distancing or provide more ventilation. Or they can choose to do absolutely nothing.
What’s Next for OSHA?
So are workers completely screwed, left without any protection against what is arguably the greatest occupational safety and health threat facing them in the 50 years since OSHA was created?
Not necessarily. The Supreme Court did not dispute that OSHA has strong authority and responsibility to protect workers from COVID-19. The Court didn’t even say definitively that OSHA can’t ever issue a vaccine mandate — as long as it’s targeted to highest-risk workers. So what OSHA can do — and can do quickly — to protect workers is to issue an Emergency Temporary Standard similar to the (now defunct) ETS covering health care workers — requiring certain measures, such as improved ventilation, masks, distancing, outbreak reporting, paid leave and possibly, in some cases, vaccinations, as appropriate, depending on the risk that workers face. Requiring these measures provides multiple layers of protection, in case some measures fail to protect workers.
Does all that sound familiar? What I’m suggesting is almost identical to the same standard that OSHA originally wrote (as per President Biden’s January 21, 2021 Executive Order) to protect all workers — a standard that was later killed by the White House. Instead, OSHA issued a standard limited only to health care workers and then inexcusably announced that it was withdrawing that standard for fear of clouding its SCOTUS case.
That general COVID-19 worker protection emergency temporary standard is in the can. Instead of taking months to write yet another new ETS, the agency can pull this one out of the file cabinet, dust it off, update the data, make any tweaks the courts might like and shoot it over the the White House. And although OSHA announced that it will withdraw the healthcare worker ETS, no official Federal Register notice has been published. OSHA should immediately rescind that decision and re-instate the healthcare worker ETS. Of, if preferable, issue another one. Quickly.
OSHA has a standard in the can that will protect at-risk workers. Instead of taking months to write yet another new Emergency Temporary Standard, the agency can pull this one out of the file cabinet, dust it off, update the data and shoot it over the the White House.
A Tragedy of Errors
As I’ve written before, OSHA is full of some of the most hard-working and knowledgeable professionals you’ll ever run across — people who have dedicated their lives to ensuring that workers come home safe and healthy at the end of every working day.
But it seems clear that the leadership of OSHA is no longer steering the workplace safety and health ship. When it comes to worker protection from COVID-19, this administration has erred badly: wandering here, meandering there, chasing rainbows, taking one step forward, and then two back.
The Biden administration started off well, boldly committing on day two of the administration to reverse Trump’s abject failure to protect workers despite early evidence that health care workers — and then every other worker — was at high risk of contracting COVID-19 on the job. So far, so good. But then the White House had second thoughts and abruptly changed course. The vaccine was here, people were anxious to get it and it would spell the end of COVID-19. So who needed a troublesome emergency OSHA standard that would generate huge political opposition? Let’s protect the most at risk — health care workers — and then we’ll just vaccinate our way out of the pandemic.
But not so fast. Vaccine resistance grew, stalling the goal of vaccinating all Americans, just as Delta arrived, causing infections and deaths to skyrocket, ruining our summer of freedom and pulling us back in to COVID hell just when we thought we were out of it.
The White House’s next solution: try to vaccinate all American workers, and put most of that weight on a tiny, politically vulnerable agency with a weak 50-year old law that was forced to throw itself (and the entire post-New Deal regulatory structure of the United States) on the mercy of a hostile Supreme Court.
The White House’s next solution: double down and try to vaccinate all American workers (except those in small companies), and put most of that weight on a tiny, politically vulnerable agency with a weak 50-year old law that was forced to throw itself (and potentially the entire post-New Deal regulatory structure of the United States) on the mercy of a hostile Supreme Court. Then along comes Omicron, seemingly designed specifically to frustrate the hope that vaccines will stop transmission, and finally, to make matters even worse, the White House withdraws the health care worker ETS — the only COVID-19 worker protection measure that OSHA had successfully accomplished.
The only workers who are now required by law to be vaccinated are overworked, underpaid, burned out health care workers and even vaccinations aren’t stopping them from getting sick. Even though the vaccine is still proving to be amazingly effective in preventing severe disease and death, it’s not preventing a huge percentage of health care workers from getting sick, further straining their health, their sanity as well as the entire health care system. And just to put a cherry on top, in order to save hospitals (and other businesses) from sinking beneath the Omicron wave, CDC allows shorter isolation times for sick workers, likely allowing infectious workers back into health care facilities and other workplaces.
Every other worker — in meatpacking plants, warehouses, grocery stores, restaurants and health care facilities that don’t receive Medicare or Medicaid funding — are left completely without enforceable protections — except those weak protections provided by OSHA’s general duty clause. Meanwhile, JBS has confirmed a new COVID-19 outbreak at Greeley, Colorado, plant and COVID-19 infections and deaths among nursing home staff are at record levels since the CDC and CMS started reporting the data in June 2020.
Is this any way to run a worker protection system?