How Governments Can Boost Workplace Safety After Supreme Court Halts Vaccine Mandate

 

Connecting state and local government leaders

COMMENTARY | Although the court struck down the federal government’s Covid-19 vaccine-or-test mandate, there are ways states and localities can protect workers from the virus.

Earlier this month, in a decision that surprised no one who was paying attention, the U.S. Supreme Court’s conservative majority blocked an emergency workplace safety rule by the Occupational Safety and Health Administration requiring large employers to mandate either vaccines or indoor masks and weekly tests for employees.

Given Covid-19's workplace spread and OSHA's congressional mandate to protect workplace safety and health, the case should have been a no-brainer. But the ideologically driven majority reasoned that because there was no historical precedent of OSHA passing a rule like this one, it couldn’t pass the rule. 

They also found that Covid is a threat “untethered, in any causal sense, from the workplace.” Tell that to the thousands of meatpacking, supermarket, fast food, warehouse and other workers who have contracted the virus at work.

It’s a decision with terrible implications for worker safety and for the ability of government agencies to address all kinds of pressing needs, highlighting once again the urgency to reform the Supreme Court.

However, this decision cannot be a reason to give up on protecting workers from Covid-19. OSHA, states and localities, business, consumers and workers can all take steps to keep workers safe.

OSHA should pass a new, more tailored rule as quickly as possible that comports with the court’s decision, which would allow targeted regulations where Covid-19 “poses a special danger because of the particular features of an employee’s job or workplace.” OSHA’s former leaders have called for the agency to enact a previously drafted emergency standard that wasn’t introduced; that rule would require multiple layers of protection, with measures tailored to workers’ specific risks, including not only masks and vaccination, but also improved ventilation, distancing, outbreak reporting and more.

Even a reboot of the struck-down rule could in some ways be more inclusive than the original version. Industry-specific rules could cover workplaces with fewer than 100 employees, and also include temp workers and subcontracted workers, not just an employer's direct employees.

These issues would ideally be addressed on a federal level, but in the wake of the decision, states and localities should take immediate action. Although some conservative-led states have been an obstacle to Covid-19 workplace safety by opposing OSHA’s rules and preempting local authorities from protective measures, more forward-thinking states can take decisive action. Governors can pass emergency rules requiring indoor masking generally, as many have done. 

States can also pass workplace safety mandates. OSHA doesn’t preempt state or local action unless OSHA has a rule on a given hazard. And the decision striking the vax-or-test rule leaves the door open for states to act.

Some acted long before the decision. New York, for example, last year passed the Hero Act which, among other things, requires employers to adopt a plan for airborne infectious disease exposure prevention. Relatedly, California, one of 22 states with an OSHA-approved state plan covering private-sector employers, established Covid prevention emergency temporary standards for employers earlier in the pandemic. These include measures like requiring employers to have a written Covid-19 prevention program, advise employees of potential workplace exposure, provide and require face coverings for unvaccinated workers, and maximize the amount of outside air. 

State plans could go a step further and enact the previously drafted OSHA emergency standard that was never introduced.

Paid Sick Leave and Other Mandates 

Another important step is for laggard states without paid sick leave laws to finally pass them, so that people can recover instead of spreading the virus to their co-workers. Also, state governments aren’t the only ones that can act in the wake of the Supreme Court’s ruling. Cities and other localities can mandate indoor masks, paid sick leave, and more, except in states where conservative leadership has preempted such action.

Even without a mandate from OSHA, employers can do everything possible to keep workers safe. They can improve ventilation systems, allow for distancing, allow remote work where possible and provide paid sick leave. And they can still require what the OSHA rule mandated: Employees must get a vaccine or test weekly and mask. Surely some business leaders liked having the cover of blaming vaccine mandates on federal requirements, and they can’t do that anymore. But business leaders should value keeping their workforce safe. 

Days before the court’s decision, United Airlines’ CEO noted the impact of the company’s vaccine mandate: “zero deaths and zero hospitalizations for vaccinated employees.” His conclusion: “requiring the vaccine is the right thing to do because it saves lives.” True, some workers will complain or quit (and conservatives are attacking companies like Carhartt, which is continuing to require the vaccine). But faced with company mandates, only a tiny fraction have refused. 

And most workers—the silent vast majority—believe the science and want to be safe at work. Many workers are voting with their feet and leaving jobs where they don’t feel safe.

Consumers also can push companies to keep workers safe, both because they care about the ethics of the businesses they patronize, and also in their self interest. Given the nature of Covid spread, shopping at a store without safety measures endangers customers, too.

Finally, workers always do better when they band together. Unions have stood up for worker safety and health throughout the pandemic, showing the importance of collective action and ideally organizing a union. Our outdated labor laws make this an uphill battle, but this is a moment of increased worker activism. For example, after unionizing their store, baristas in a Buffalo, New York Starbucks recently walked out, seeking improved Covid-19 workplace safety measures.

The Supreme Court’s decision will be remembered as a shameful, immoral legal blunder. The majority’s disconnect from the reality of workers’ lives, in this case and so many others, makes it even more pressing that everyone else does whatever they can to keep working people safe.

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.