U.S. Secretary of Labor Marty Walsh speaks about unions during an event in the East Room of the White House on September 8, 2021 in Washington, DC.
Brendan Smyalovsky | AFP | Getty Images
The Labor Department has vowed to use its powers to protect workers from Covid after the Supreme Court blocked the Biden administration from imposing vaccination and testing rules on private businesses.
Labor Secretary Marty Walsh, in a statement following the Supreme Court ruling, said the Occupational Health and Safety Administration is evaluating its options for enforcing anti-Covid safety standards in the workplace.
“Regardless of the final outcome of this proceeding, OSHA will do everything within its existing authority to hold businesses accountable for protecting workers,” Walsh said Thursday.
OSHA still has general authority to require employers to maintain workplace safety and can fine businesses if they fail to do so. The agency has been investigating thousands of Covid complaints with millions of dollars in proposed fines since the pandemic began.
The Supreme Court’s conservative majority, in its 6-3 ruling, called the federal mandate a “crude tool” that “does not discriminate based on industry or risk of exposure to Covid-19.”
However, the high court has said that OSHA has the power to regulate certain workplaces where workers face an increased threat from Covid.
“Where the virus poses a particular risk due to the nature of the employee’s job or workplace, targeted regulation is clearly acceptable,” the court wrote in an unsigned opinion.
The court said it has “no doubt” that OSHA can put in place safety measures to protect workers from Covid in particularly cramped or crowded environments.
In other words, OSHA can adapt new regulation targeting high-risk industries like the meatpacking industry with safety measures that don’t include the controversial vaccine rule, according to Jordan Barab, OSHA’s deputy assistant secretary under the Obama administration.
“There are a number of criteria that OSHA can use to make it more risk-based, which is likely to pass the Supreme Court’s scrutiny,” Barab told CNBC on Friday.
Unions are already moving in this direction. The AFL-CIO, the largest union federation in the US, has called on the White House to issue a new workplace safety standard that will require improved ventilation, physical distancing, masks and paid time off for all workers.
“While we are disappointed with this decision, the majority of the judges clearly recognized OSHA’s authority to protect workers who face an increased risk of exposure to Covid-19 in the workplace,” AFL-CIO President Liz Schuler said in a statement. “OSHA’s responsibility for providing a safe working environment remains unchanged.”
The United Food and Commercial Workers, which represents 1.3 million people primarily in the meat packaging and food processing industries, wants the White House and businesses to provide free personal protective equipment in addition to the measures required by the AFL-CIO.
The International Union of Service Workers, which represents 2 million workers, is calling on Congress and states to intervene and put in place safety measures where the White House has failed, including universal vaccinations and greater access to testing.
“In light of the Supreme Court’s callous rejection of millions of essential workers, Congress and states must act urgently to require employers to protect all workers,” SEIU President Mary Kay Henry said in a statement.
More than 20 states have their own workplace safety plans, and some have implemented Covid safety requirements. California, for example, requires that all employees and customers wear masks indoors. Businesses must alsoimplement Covid prevention plans, investigate outbreaks and notify employees throughout the day, and offer free testing to fully vaccinated employees, among other measures.
New York has introduced a vaccination mandate for all private businesses. Mayor Eric Adams made it clear Friday that city rules are still in place.
Chicago requires all individuals over the age of 5 to show proof of vaccination in order to eat indoors at a restaurant, go to the gym, or enter indoor entertainment venues that serve food. Los Angeles has similar rules.
President Joe Biden, for his part, urged companies to voluntarily comply with vaccination and testing regulations. A number of major companies, including Citigroup, Nike and Columbia Sportswear, have said they will start laying off unvaccinated workers.
“The court ruled that my administration cannot use the authority granted to it by Congress to demand this measure,” Biden said. “But that doesn’t stop me from using my voice as president to advocate for employers to do the right thing to protect the health and economy of Americans.”
However, other companies are already ditching the rules. General Electric, which has 174,000 employees, said on Friday it had suspended vaccination and testing rules.