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By David Michaels and Jordan Barab
Mr. Michaels was assistant secretary of labor for the Occupational Safety and Health Administration from 2009 to 2017. Mr. Barab was deputy assistant secretary of labor for the Occupational Safety and Health Administration from 2009 to 2017.
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.
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