Quite early in my career as a lawyer for the U.S. Labor Department — at the dawn of the Reagan presidency — I found myself trying a number of safety and health cases against a large South Carolina construction company. The Occupational Safety and Health Act (OSH Act) had been signed into law by President Richard Nixon a decade earlier, but this company, as a matter of principle, contested even minor OSHA violations it received, regardless of their merits. The company, as I recall, just couldn’t stomach that the federal government had the audacity —and the authority — to demand that it protect its workers from hazards in the workplace. Those early memories resonate today.
Passed in 1970, the OSH Act was designed to “assure safe and healthful working conditions for working men and women” by, among other things, “authorizing the enforcement of the standards developed under the Act.” Since its passage, this law — imperfect as it is — has saved the lives of countless workers in the United States. Far too many employees are still injured or die due to hazards on the job, but the OSH Act has made many millions of them safer and healthier.
Enter COVID-19. We saw “essential workers” — bus drivers, nurses, grocery store clerks, meatpacking plant workers — exposed to and dying from the virus. Under President Donald TrumpDonald TrumpGrant Woods, longtime friend of McCain and former Arizona AG, dies at 67 Super PACs release ad campaign hitting Vance over past comments on Trump Glasgow summit raises stakes for Biden deal MORE’s watch, the Occupational Safety and Health Administration (OSHA) sat on its hands. It promulgated no new workplace standards to address the deadly pandemic and conducted grievously few on-site inspections. When the rare inspection found failures to properly protect workers from COVID-19 transmission under the OSH Act’s “general duty” clause, paltry fines were assessed.
President BidenJoe BidenGrant Woods, longtime friend of McCain and former Arizona AG, dies at 67 Sanders on Medicare expansion in spending package: 'Its not coming out' Glasgow summit raises stakes for Biden deal MORE vowed to do better. On Jan. 21, he ordered OSHA to amplify existing guidance and to immediately consider issuing an emergency temporary standard (ETS) that would mandate new protections from exposure to the virus. To the disappointment of many worker safety advocates, the ETS issued June 10 was limited to health care sector workplaces. The presumed — if not entirely convincing — reason was that the pace of vaccinations and the rapid drop in new cases obviated the need for a broader rule.
Fast forward to today. Vaccination rates aren’t where they need to be, and the delta variant is ravaging our communities. In early September, a majority of United States counties were experiencing “extremely high” COVID-19 transmission, which translates into extremely high risk for unvaccinated people in those counties. Idaho, with one of the lowest vaccination rates in the country, has begun rationing health care as a “last resort.” Many hospitals in the South — also where vaccination rates are lower — have dangerously few intensive care unit (ICU) beds, if any, available.
Faced with an unrelenting pandemic that’s attacking communities and workplaces alike, on Sept. 9 Joe Biden called on OSHA to redouble its efforts. He’s now looking for a new ETS that will require employers with more than 100 workers to verify either that their employees are vaccinated or have gotten a negative COVID-19 test at least weekly. When it’s published, the expected rule will protect 80 million workers — both the vaccinated and the unvaccinated. It won’t be a vaccine mandate because workers will be able to choose the testing option. But clearly, the most effective way for employers to protect their workers from COVID is, first and foremost, to induce the unvaccinated to get the shot.
Many employers are on board. Some, like Chevron, Disney, and United Airlines, have already required many of their workers to be vaccinated. The Business Roundtable welcomed the ETS announcement and “the Biden Administration’s continued vigilance in the fight against COVID.”
Not so, however, with several of our Republican politicians. Sen. Ted CruzRafael (Ted) Edward CruzOvernight Health Care — Presented by Carequest — Colin Powell's death highlights risks for immunocompromised The Senate confirmation process is broken — Senate Democrats can fix it Australian politician on Cruz, vaccines: 'We don't need your lectures, thanks mate' MORE (R-Texas) called the president’s actions “utterly lawless,” while Texas Gov. Greg AbbottGreg AbbottGOP leaders escalate battle against COVID-19 vaccine mandates Lincoln Project files ethics complaint against Abbott Arizona attorney general asks for restraining order to block federal vaccine mandate MORE (R) decried an “assault on private business.” Georgia Gov. Brian KempBrian KempI voted for Trump in 2020 — he proved to be the ultimate RINO in 2021 Abrams targets Black churchgoers during campaign stops for McAuliffe in Virginia Arbery murder trial set to begin this week MORE declared the as-yet-unwritten regulation “blatantly unlawful;” Florida Gov. Ron DeSantisRon DeSantisSunday shows preview: CDC signs off on 'mix and match' vaccine boosters Judge sides with Tennessee families in mask mandate fight GOP leaders escalate battle against COVID-19 vaccine mandates MORE (R) railed against what he sees as an attack on “constitutional government” and “the rule of law.” South Carolina Gov. Henry McMaster (R) claimed Biden and the Democrats had “declared war against capitalism” and pledged to “fight them to the gates of hell.”
Arizona Attorney General Mark Brnovich apparently determined to be first to the courthouse among his fellow Republican AG’s, on Sept. 14 sued Biden and other administration officials, claiming they have no authority “to promulgate any rules related to public health, safety, and welfare because those are issues that are supposed to be left to states.”
But Brnovich and his colleagues are wrong. In the OSH Act, Congress made quite clear its intention to “assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources…by authorizing the Secretary of Labor to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce.”
This is no unconstitutional power grab. In the face of an unremitting pandemic, workers’ health remains at grave risk, and it’s the government’s job to assure “as far as possible” that risk is minimized. Mandating employers to require employees to be either vaccinated or frequently tested will provide far greater protection than they have today. And that protection will extend beyond the workplace, to their families, their children and their community.
As it labors to give birth to a new and effective ETS designed to stem COVID-19’s workplace carnage, OSHA has its work cut out for it. The last thing it needs is posturing by politicians or senseless litigation. Republican governors and attorneys general — no less than the South Carolina construction company I tangled with many years ago — ought to think long and hard about whether fighting OSHA’s efforts to better protect our nation’s workers is really in their, or anyone’s, interest.
Michael Felsen enforced federal worker protection laws, including OSHA, as an attorney with the U.S. Labor Department’s Office of the Solicitor, concluding a 39-year career as New England regional solicitor from 2010-2018. He is currently an Access to Justice fellow with Justice at Work in Boston.