After a year of inaction by the Occupational Safety and Health Administration (OSHA), one of the Joe Biden administration’s first executive actions, on January 21, 2021, called for workplace rules that would protect workers against COVID-19. Under President Donald Trump, OSHA limited itself to issuing nonbinding employer guidance on COVID protections for workers; Biden’s administration promised to issue an emergency temporary standard (ETS) to protect workers from transmission on the job. The proposed rule was a long time coming: by one estimate, over 59,000 workers have fallen ill with COVID in the meatpacking industry alone.
Before the rule was actually implemented in November 2021, the proposed ETS was viewed as a move that would allow OSHA to reassert its rightful place as a guarantor of workplace rights. But that’s not what happened. As reported by Bloomberg, business representatives met with the administration last spring and tried to kill the rule altogether, arguing that widespread adoption of vaccination would make OSHA rulemaking unnecessary. In a May 2021 letter to Congress, the National Retail Federation criticized the forthcoming OSHA rule, writing, “Declaring an emergency fourteen months into a pandemic would convey the false notion that American workplaces are dangerous and would run counter to all Administration messaging regarding COVID-19.”
The Biden administration seems to have heard business leaders’ concerns loud and clear. The final rule issued by Biden’s secretary of labor, Marty Walsh, greatly reduces any costs to employers, instead passing major compliance costs to employees themselves. The regulation encourages employers to impose vaccine requirements as a condition of employment.
But instead of enacting a universal mandate, it also offers a test-and-mask option. Under the rule, workers can still refuse vaccination; unvaccinated employees are required to mask at work and to provide a copy of a negative COVID test every seven days, all at their own individual cost.
A recent data analysis by Doug Henwood reveals that the lowest rate of vaccination among American workers can be found in the lowest income bracket. Whatever we may think of workers’ reasoning for remaining unvaccinated, the mask-and-test option marks a historical first. This is the first time that OSHA has required that employees, not employers, pay for their own protective equipment. (The published rule helpfully notes that OSHA “does not prohibit the employer from paying for costs associated with face coverings required by this section.”)
Now the ETS, even in its watered-down state, is being challenged before the Supreme Court. Outraged conservatives are calling it a vaccine mandate, despite the fact that it does not itself mandate vaccination, only nudges employers to — and gives them cost-free alternatives to vaccination, to boot. Given the court’s conservative majority, we can expect a very narrow interpretation of what power Congress gave OSHA when the agency was created in 1970. Thus, the Biden administration’s already weak attempt to compel employers to protect their employees from COVID-19 is likely to become even weaker.
With OSHA’s rule design, we have traveled a long way from the initial policy response of Congress in spring 2020, when the federal government guaranteed paid sick leave for COVID-affected private sector workers. Congress also gave workers the money and legal standing to refuse employers who would cut short quarantine times or pressure them to clock in while sick. But after that brief window of opportunity, the policy landscape has reverted to the norm. Federal labor policy now makes a nod in the direction of worker safety, but the overriding national industrial policy has been to create a surplus of workers with minimal power to bargain for themselves.
It is clear that the Biden administration has moved on from containing the health impact on workers to minimizing disruptions. Instead of “heroes” and “essential workers,” the new watchwords of the federal pandemic response are “disruptions” and “return to normal.” The latest guidance from the CDC shortening quarantine times makes evident that worker availability is the order of the day rather than worker safety.
If remaining unvaccinated workers choose to get vaccinated because of this OSHA rule transferring compliance costs onto them, they may avoid hospitalization. But their well-being isn’t really the point anymore. The point is to ensure they, one, go back to work, and two, their safety costs employers as little as possible — in paid sick time, protective equipment, testing, or other workplace safety measures that would keep workers and everyone else safe from harm.