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

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.