A few weeks ago, Republicans in both chambers of Congress signed on to resolutions to nullify the vaccination-or-test emergency temporary standard (ETS) recently issued by the Occupational Safety and Health Administration (OSHA). We’ve seen a version of this movie before, and it didn’t make for happy viewing.
The ETS that’s the subject of the current Republican effort follows the Trump administration’s abject failure to require employers to implement practices to stem the spread of coronavirus. It also follows an ETS Biden’s OSHA published in June that covered only health care industry workers. Faced with a rampaging delta variant, on Nov. 5 the workplace safety agency issued this latest emergency standard, requiring employers with 100 or more employees to ensure their employees are either vaccinated or tested at least weekly for COVID-19. It’s unleashed a firestorm of opposition from the Republican side.
Even before the standard was issued, Texas Gov. Greg AbbottGreg AbbottO'Rourke 'not interested' in campaign help from politicians outside Texas Gerrymandering is putting US in Mad Max territory On immigration, President Biden needs a re-set MORE (R) called it “an assault on private business,” while South Carolina Gov. Henry McMaster (R) vowed to fight “to the gates of hell.” As soon as it was published, Republican-led states and an assortment of businesses filed an avalanche of lawsuits. These challenges found the friendly ear of a panel of three 5th U.S. Circuit Court of Appeals judges, who temporarily barred OSHA from implementing the regulation. Under a federal appeals court lottery procedure, the multiple lawsuits will now be decided by the 6th Circuit Court of Appeals. Until it does, OSHA has asked the court to lift the stay.
Apparently finding redress to the courts inadequate for their political purposes, on Nov. 17 all 50 Republican senators and at least 170 Republican House members chose a path they know will lead to a dead end. They’re bringing the resolutions to rescind the vaccine-or-test ETS under the 1996 Congressional Review Act (CRA), a Newt GingrichNewton (Newt) Leroy GingrichMORE-era, less-government-is good-government law that gives Congress the ability to overturn agency rules during a short period after they’re issued. Because it requires backing from a majority of both houses of Congress and the president, this particular effort is doomed to fail as anything more than political posturing.
Twenty years ago, though, Republicans successfully brandished the CRA against another OSHA regulation. The product of a decade of painstaking work by health and safety experts, the “ergonomics standard” sought to reduce the growing incidence of disabling workplace-related musculoskeletal injuries, like back and shoulder injuries, and carpal tunnel syndrome. Published at the end of the Clinton presidency, in early 2001 it faced a hostile Republican-controlled Congress and a newly-elected George W. Bush. In a burst of deregulatory zeal, it was eviscerated with the stroke of the president’s pen.
Workers paid. The Bureau of Labor Statistics tells us that in 2018 musculoskeletal disorders accounted for 30 percent of workplace lost-time injuries and illnesses. Forty percent of U.S. workers report chronic or recurrent musculoskeletal pain, and 15 percent report pain on most days. And for years, these disorders were commonly treated with addictive prescription pain killers. So it’s not surprising to see a line drawn — as many studies do — between work-related pain treatment and the opioid public health crisis we face today.
An untold number of opioid deaths could have been prevented had the ergonomics standard not been snuffed out in its infancy in 2001. In other words, workers have seen the kill-the-OSHA-regulation movie before, and it didn’t end well.
Meanwhile, what the courts will do with the legal challenges to the ETS is up for grabs. That’s very troubling, because COVID-19 isn’t finished with us yet, as the still-proliferating delta variant, and now a new and possibly more pernicious omicron strain, make unmistakably clear. Vaccination or testing, as prescribed by the ETS, remain vital preventions of workplace spread of the virus.
If allowed to go into effect, the ETS is expected to prevent 250,000 hospitalizations and save at least 6500 workers’ lives. That estimate doesn't include the damage omicron could do. Yet Republican politicians, in Congress and in the states, want to see it permanently blocked. In fact, as of this writing — in the very latest version of this bad film — some are now urging a government shutdown if they don't get their way.
The last thing workers and their families need is another movie with a tragic ending that should have been otherwise.
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.