Fairly early in my career as an attorney for the United States Department of Labor – on the eve of the Reagan presidency – I found myself adjudicating a number of safety and health cases against a large North Carolina construction company. South. The Occupational Safety and Health Act (OSH Act) had been enacted by President Richard Nixon a decade earlier, but this company, on principle, challenged even minor OSHA violations it received, regardless of their merit. The company, if I remember correctly, simply could not accept the federal government having the audacity – and the authority – to demand that it protect its workers from workplace hazards. These early memories resonate today.
Passed in 1970, the OSH Act was designed to “ensure safe and healthy working conditions for working men and women” by “authorizing, among other things, the application of standards developed under the law”. Since its adoption, this law, imperfect though it may be, has save the life countless workers in the United States. Far too many employees are still injured or die from workplace hazards, but the OSH law has made millions of them safer and healthier.
Enter COVID-19. We have seen âessential workersâ – bus drivers, nurses, grocery store clerks, meat factory workers – exposed to and die from the virus. Sub President Donald trumpDonald Trump’s fencing Capitol begins to drop after “Justice for J6” rally Netanyahu suggests Biden fell asleep during a meeting with the Israeli prime minister.‘s watch, Occupational Safety and Health Administration (OSHA) sitting on his hands. It has not promulgated any new workplace standards to address the deadly pandemic and has conducted awfully little on-the-spot checks. When the rare inspection revealed failures to properly protect workers against transmission of COVID-19 under the âgeneral dutyâ clause of the OSH Act, ridiculous fines were evaluated.
President BidenJoe BidenCapitol’s fencing begins to drop after ‘Justice for J6′ rally Senate MP rejects Democrats’ immigration plan Biden pushes Democrats back on taxes MORE promised to do better. On January 21, he order OSHA to amplify existing guidelines and immediately consider issuing a Temporary Emergency Standard (ETS) that would impose new protections against exposure to the virus. To the disappointment Many advocates for worker safety, the ETS released on June 10 was limited to healthcare workplaces. The alleged – if not entirely convincing – reason was that the pace of vaccinations and the rapid decline in new cases avoided the need for a broader rule.
Fast forward to today. Immunization rates are not where they should be, and the delta variant is ravaging our communities. At the beginning of September, a majority of American counties knew “Extremely high” COVID-19 transmission, which translates into an extremely high risk for unvaccinated people in these counties. Idaho, with one of the lowest vaccination rates in the country, began to ration health care as a âlast resortâ. Many hospitals in the South – also where vaccination rates are lower – have dangerously few intensive care unit (ICU) beds, if any, available.
Recent studies show that the vaccinated are five times less likely to be infected (and therefore transmit) the virus, and 10 times less likely to be hospitalized.
Faced with a relentless pandemic attacking communities and workplaces, September 9 Joe Biden called OSHA to redouble its efforts. He is now looking for a new ETS that will require employers with more than 100 workers to verify that their employees are vaccinated or that they have tested negative for COVID-19 at least once a week. When published, the expected rule will protect 80 million workers, both vaccinated and unvaccinated. This will not be a vaccination warrant because workers will be able to choose the test option. But it is clear that the most effective way for employers to protect their workers from COVID is, first and foremost, to encourage unvaccinated people to get vaccinated.
Many employers are on board. Some, like Chevron, Disney and United Airlines, have already asked many of their workers to be vaccinated. The business roundtable welcomed the ETS announcement and “the continued vigilance of the Biden administration in the fight against COVID.”
Not so, however, with several of our Republican politicians. Senator Ted cruzRafael (Ted) Edward Cruz O’Rourke Prepares To Be Governor Of Texas: Report Support For Abbott Diving In Texas: Poll White House Debates Air Travel Vaccines MORE (R-Texas) called the actions of the president “totally lawless”, while the government of Texas. Greg AbbottGreg Abbott Dozens of Republican Governors Call for Meeting with Biden on Raising Borders The Hill’s Morning Report – Presented by Alibaba – Democrats are back on immigration disappointment (R) denounced an âassault on a private companyâ. Governor of Georgia Brian kempBrian Kemp President Biden’s vaccination plan constitutional – and White House discusses vaccines needed for air travel OSHA faces big challenge with Biden PLUS vaccine mandate declared the as yet unwritten regulation “manifestly illegal; Â»Governor of Florida Ron DeSantisRon DeSantis President Biden’s vaccination plan constitutional – and needed religious leaders call on Congress to lead response to global pandemic Democrats look at vaccine mandates ahead of midterm MORE (R) lambasted what he sees as an attack on “constitutional government” and “the rule of law”. South Carolina Gov. Henry McMaster (right) claimed Biden and the Democrats had “declared war on capitalism” and promised to “fight them to the gates of hell”.
Arizona Attorney General Mark Brnovich apparently determined be the first in the courthouse among his Republican colleagues AG, on Sept. 14, Biden and other administration officials continued, saying they had no authority “to enact rules relating to public health, safety and welfare, as these are matters which are supposed to be left to the States “.
But Brnovich and his colleagues are wrong. In the OSH Act, Congress made it clear that it intended “to ensure as far as possible for all workers in the nation safe and healthy working conditions and to preserve our human resources … health standards. applicable to businesses affecting interstate commerce.
This is not an unconstitutional takeover. In the face of a relentless pandemic, workers’ health remains at serious risk, and it is the government’s job to ensure “as much as possible” that the risk is minimized. Forcing employers to require employees to be vaccinated or tested frequently will offer far greater protection than they have today. And this protection will extend beyond the workplace, to their families, children and communities.
As it strives to spawn an effective new ETS designed to stem COVID-19 workplace carnage, OSHA has its work cut out for it. The last thing he needs is posture from politicians or senseless litigation. Republican governors and attorneys general – no less than the South Carolina construction company I tangled with many years ago – should think long and hard about whether to fight the efforts of the OSHA to better protect the workers of our country is really in their best interest, or that of anyone.
Michael Felsen enforced federal worker protection laws, including OSHA, as an attorney with the United States Department of Labor’s Attorney’s Office, ending a 39-year career as a prosecutor New England Regional from 2010 to 2018. He is currently an Access to Justice Fellow with Justice at Work in Boston.