The American Prospect | Can OSHA Keep Workers Safe? The Court Hears the Case Tomorrow.

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KI Fellow, Debbie Berkowitz writes in The American Prospect on the upcoming hearing before the Supreme Court on the the Biden Administration’s new OSHA standard on vaccines and testing.

As COVID-19 cases surge to record highs and workplace outbreaks continue to endanger workers and cause labor market disruptions, the Supreme Court has decided to hear its first case in 30 years involving the Occupational Safety and Health Administration (OSHA). On Friday, the Court will hear arguments on whether a stay should suspend OSHA’s standard (new window) requiring large employers to mitigate worker exposure to the virus that causes COVID-19 by ensuring that their workers are either vaccinated or masked and tested weekly. The case comes after the Sixth Circuit, in a bipartisan decision (new window) in late December, supported the OSHA rule, and lifted a stay imposed earlier by the Fifth Circuit.

Much hinges on this hearing on OSHA’s standard. COVID-19 is the worst occupational health crisis to emerge since OSHA’s creation in 1970. The standard will save workers’ lives, reduce hospitalizations, and keep our economy going.

In its decision to uphold the OSHA rule, the Sixth Circuit (new window) was clear that not only does OSHA have the legal authority to issue such a rule, but OSHA had “demonstrated with substantial evidence that the nature of the workplace” presents “a heightened risk of exposure.” As the appellate court noted in its decision, “within one week in mid-November, Michigan had reported 162 COVID-19 outbreaks, 157 of which were in workplaces; Tennessee reported 280 COVID-19 outbreaks, 161 of which were in workplaces; Washington state reported 65 outbreaks, of which 58 were in workplaces. And other states similarly experienced outbreaks predominantly in the workplace.” The grave danger to workers from exposures to this virus is clear.

And it’s not just blue-collar workers who are at heightened risk. Even the justices and staff of the Supreme Court are worried about their exposure and require (new window) that all attorneys arguing before the Court undergo a PCR test the morning before a case is heard. If they test positive, they cannot argue in person. Furthermore, all attorneys must wear the most protective masks.

Without the OSHA standard, other workers have no such right to be protected from COVID-19.

OSHA issued its COVID-19 emergency temporary standard on November 5th, to be in effect for six months. But on November 7th, the Liberty Justice Center (new window) challenged the order in the nation’s most conservative jurisdiction, the Fifth Circuit, and won a stay despite OSHA’s clear statement (new window) that over a six-month span the standard would prevent 250,000 hospitalizations and save 6,500 lives. The center is a conservative organization largely funded by right-wing billionaires (new window), and had no previous history of weighing in on OSHA issues. It did, however, have a long track record opposing workers’ ability to advocate collectively in unions.

The Fifth Circuit’s ruling was the first court-ordered stay of an OSHA standard in over 35 years.

Let’s be clear: If the Fifth Circuit had not suspended the rule, all large employers would have begun preparing to implement a testing-and-masking or vaccine regime in their workplace before the recent surge of the omicron variant. In other words, had compliance with the rule begun, hundreds if not thousands of lives would have already been saved and tens of thousands of hospitalizations would have never occurred.

Fortunately, the Sixth Circuit decision eviscerated every argument the Liberty Justice Center raised. Its logic is buttressed by the fact that OSHA had already issued and put into effect an emergency temporary standard for health care workers (new window) that not a single employer contested.

We will soon see whether the Supreme Court accepts the Sixth Circuit’s compelling logic. Make no mistake: If it does not, it will sabotage a half-century-old agency charged with protecting workers. The law creating OSHA (new window) was passed in 1970 and signed by Richard Nixon. It gave OSHA the mission to ensure safety and healthful workplace conditions for working men and women, extending to them the right to a safe workplace—and to their employers an obligation to ensure that workers don’t have to sacrifice their lives and bodily health for a paycheck. Despite its small size (it would take OSHA’s current team of investigators over 150 years to visit (new window) every workplace under its jurisdiction just once), the agency has had a remarkable impact. Since OSHA was created, the number of workers dying on the job has been reduced by over 66 percent, even though the workforce has almost doubled in size. OSHA does not issue many regulations—but those it has promulgated have until now held up well. In fact, every OSHA standard issued in the past 30 years has been either upheld or strengthened due to court challenges.

We had a saying when I was at OSHA that OSHA regulations don’t kill jobs, they prevent jobs from killing workers. Now the Supreme Court will decide whether OSHA can protect workers against the biggest single threat to their health and safety they have faced in the past half-century. For the sake of all the essential workers who have kept our economy going during this pandemic, let’s hope they do.