Workers in the U.S. just suffered a gut punch.
On Jan. 13, the six conservative justices of the U.S. Supreme Court blocked implementation of an “emergency temporary standard” issued by the Occupational Safety and Health Administration (OSHA). The standard directed that employers with 100 or more workers must require their employees to either be vaccinated or else mask and undergo weekly testing at their own expense. It was not a “vaccine mandate.” It encouraged vaccination but allowed other options.
Even so, six justices turned their thumbs down. Congress, they said, hadn’t authorized OSHA to issue such a sweeping rule. They also argued that since COVID-19 is a public health problem and not one limited to workplaces, it’s not in OSHA’s bailiwick.
The court’s three liberal justices vehemently dissented. The Occupational Safety and Health Act, they said, expressly calls for emergency temporary standards like this one. The enormity and seriousness of the problem justified taking this big step. And nothing in the act suggests that, if a hazard presents a grave danger that extends beyond the workplace, OSHA is powerless to take action. According to OSHA estimates, the proposed rule would have saved 6,500 lives and prevented 250,000 hospitalizations over the next six months.
The court majority did leave open the possibility that a new rule, narrowly tailored to workplaces with the greatest risk of COVID-19 transmission, might survive their scrutiny. But hours after the decision was handed down, President Joe Biden signaled that it’s now up to individual employers and the states to protect workers against a virus that has already killed some 850,000 people in the United States.
That doesn’t bode well. The law creating OSHA was passed more than 50 years ago because many employers weren’t doing enough to protect their workers from injury and death on the job, and because states weren’t stepping into that breach. So Congress provided a federal right to “safe and healthful working conditions for working men and women.”
The law is credited with saving hundreds of thousands of lives and preventing countless injuries and illnesses. And yet, in the face of the greatest occupational health challenge this nation has ever faced, six justices effectively told OSHA to back off.
COVID-19 calls for a concerted national response; tossing worker safety back to the states is anything but. Worker advocates and unions have been pushing for a federal emergency rule since the pandemic began. When the Trump administration refused to act, some states — California, New Jersey and Virginia among them — issued mandatory safety standards of their own. Others did nothing.
In fact, after the Biden administration proposed the vaccine or testing rule, it was the states — specifically 26 “red” states — that sued to prevent its implementation, leading to the Supreme Court’s action in mid-January.
But now it’s back to the states to tackle COVID-19 transmission in the workplace. Some may pass new rules, perhaps including vaccine mandates. Others will do nothing or, worse, even prevent employers from requiring vaccines or testing. Businesses will be left wondering what the rules are, or will be.
OSHA was created to set a floor on workplace safety in all 50 states, and the vaccine-or-test rule was designed to save lives consistent with that mandate. Six justices devised reasons to block that effort, and now each state will either address the workplace COVID threat — or not — as it sees fit.
That’s no way to honor our workers — or the will of Congress.
Felsen of Jamaica Plain, Mass., retired in 2018 after a 39-year career as an attorney with the Department of Labor, serving from 2010-2018 as its New England Regional Solicitor.