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Reviews |  OSHA can do more to protect Americans from Covid-19


The Supreme Court’s decision on Thursday to block the Occupational Safety and Health Administration from requiring large employers to ensure their workers are either vaccinated against the coronavirus or masked at work and tested every week has been a setback for American efforts to stop the pandemic. The six Republican-appointed justices are helping to prolong the pandemic, endanger workers and prolong the labor shortage that has disrupted the economy.

But the judges may also have opened the door to a more comprehensive rule that will better protect the country’s workers, and it’s one that OSHA should have released months ago.

The court’s decision displays flagrant misunderstandings of the laws governing OSHA’s responsibilities. There is no doubt that the Covid-19 pandemic fits the criteria of unsafe working conditions for which the agency was created, and that some workers, due to the nature of their work, are at higher risk of falling sick with Covid-19 than the general public.

However, the judges, in the court’s majority opinion, acknowledged that Covid-19 is in fact a danger in high-risk workplaces. “We have no doubt, for example, that OSHA can regulate researchers who work with the Covid-19 virus. OSHA could also regulate the risks associated with working in particularly cluttered or cramped environments. But the danger present in these workplaces differs both in degree and in kind from the daily 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 workers face. Recognition that there are situations where OSHA can regulate exposure to Covid-19 clears the way for OSHA to do what Congress has instructed the agency to do when workers are faced with a new serious hazard: issue an emergency standard requiring employers to control the hazard so that their workers do not become ill.

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OSHA has already drafted a rule that comes 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 developed a risk-based standard for all workers, but the standard that was eventually published was narrower, covering only healthcare workers. (It was removed last month.)

When OSHA released the standard for healthcare workers, in June 2021, the number of Americans vaccinated was increasing and the number of infections was decreasing. The White House might have hoped the country would be able to vaccinate itself just to get out of the pandemic. When the rise of the Delta variant, combined with growing fervor against vaccines, threatened to dash those hopes, the Biden administration doubled down on vaccine efforts, including the vaccination or testing mandate that the Supreme Court has just struck down.

OSHA’s path to protecting workers from Covid-19 is clear. First, the agency should pull the old OSHA standard out of the desk drawer, dust it off, update the data, make changes to make sure it matches the court’s new suggestion that it must be risk-based and send it to the White House. The standard should cover all workers in high-risk jobs, not just those employed by large employers. Second, OSHA should reverse its withdrawal from the standard for healthcare workers or issue a new one immediately. Ensuring the safety of healthcare workers must, of course, remain a top priority.

The Occupational Safety and Health Act directs OSHA to ensure safe workplaces for workers nationwide. This means safe from falls, fires, machinery, toxic chemicals and infectious diseases. There is still a lot of work to do.

Omicron may be “milder” than previous variants, but Covid-19 still poses a serious risk to workers. Confirmed infections among nursing home staff are at the highest levels since the Centers for Disease Control and Prevention began reporting data in the spring of 2020. We also need to prepare for the next twist.

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 Assistant Deputy Secretary of Labor for the Occupational Safety and Health Administration from 2009 to 2017.

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