During much of the pandemic, the nine Supreme Court justices conducted their work via teleconference, safely in their homes. Now, the justices, all of whom are fully vaccinated and boosted, hear oral arguments in person but require participants to follow safety rules that are stricter than the ones they’re considering: All attorneys, vaccinated or not, must take a PCR test at a court-designated facility. Only those attorneys who test negative are permitted in the building, which is otherwise closed to the public, and they are required to wear an N95 or KN95 respirator except when arguing the case, eating or drinking.
The OSHA case is fundamentally about the power of the government to protect workers — who, unlike the justices, have no power to create safe working conditions for themselves.
For many white-collar and professional employees able to work remotely with the aid of technology, the OSHA standard will have little impact. In contrast, the Supreme Court’s decision in this case will be of great consequence for front line workers who have no choice but to go to work daily and risk exposure to the virus.
Since the start of the pandemic, millions of workers who care for our sick and elderly, and who ensure there is food on our tables and that our public transportation functions, have been sickened. Many thousands died. Workplace coronavirus outbreaks are mostly no longer covered by the media, but they continue to occur with great frequency in workplaces across the country.
Now, meeting in a safe, controlled environment, the justices may well block OSHA’s requirements that employers protect workers from exposure to a deadly virus. This irony illustrates a fundamental inequity that is so normalized it is essentially invisible: Powerful people can choose to work safely, while vulnerable workers must continue to risk their lives to make a living.
Covid-19 has dramatically reshaped the workplace and workforce, resulting in a labor shortage of epic proportions. In the “Great Resignation,” workers have quit unsatisfying jobs in droves, and employers have found they are not easily replaced. Large numbers of workers have simply retired, hoping to survive on pensions and savings. The pandemic is keeping many other workers home, too: According to the Census Bureau, as of early December (before the omicron surge), 2.5 million workers have left the workforce out of fear they would become infected or spread the virus.
It is not surprising that millions of workers are terrified of going to unsafe workplaces. Many firms, especially in finance and technology, have not reopened offices since the beginning of the pandemic, while others have told their employees to work remotely until omicron passes.
Frontline workers, tragically, have not been as fortunate. The toll of serious illness and death among these workers demonstrates that the lives of these workers, who are disproportionately Black or Brown, are, literally, expendable.
Consider this thought experiment: Imagine if it were not possible to conduct business through video or teleconference. CEOs, Wall Street investors, high-powered attorneys, even Supreme Court justices would have to come into work every day, just as nurses and grocery store clerks and farmworkers do now. The demand for strong workplace safety standards would have been enormous, and more nurses and meat cutters and farmworkers would be alive today.
Under the law that established OSHA, employers are required to provide employees with workplaces free of serious hazards, and the agency is charged with issuing standards telling employers how to do that. With the exception of this recent rule requiring testing and masking for employees who are not vaccinated and an emergency standard for health care workplaces that is no longer in effect, though, OSHA has issued no standards requiring employers to better protect workers from this virus.
Increasingly, employers are recognizing the value of a safe workplace in maintaining their workforce and attracting new workers, and they’re not waiting for OSHA to require it. Many firms are rejecting the anti-vaccine rhetoric promoted by some red state officials and are requiring all workers to be vaccinated. Even Fox News, whose hosts regularly decry federal vaccination rules, insist that workers in their New York offices be vaccinated.
Omicron is making workplace protection even more challenging. While vaccinated people are far better protected from serious illness and death, and, if infected, are less likely to transmit the virus to others, the new variant has proved that vaccinations alone will not stem the pandemic. Still needed are basic public health protections for workplaces and other congregate settings: improved ventilation and filtration, masking (for both vaccinated and unvaccinated people), reduced density and social policies that reduce exposure risk such as paid family and medical leave.
A Supreme Court decision upholding OSHA’s standard is a necessary start — a stronger, more comprehensive standard is badly needed. Forward-thinking businesses are embracing vaccinations and these public health protections, but many firms remain hesitant or unwilling. The federal government needs to level the playing field by issuing enforceable worker safety rules for all employers. Only then will we stop workplace virus transmission, a vital step in both stemming the pandemic and convincing millions of people to return to work.