Labor Division vows to guard employees from Covid after mandate blocked

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US Secretary of Labor Marty Walsh speaks about unions during an event in the East Room of the White House September 8, 2021 in Washington, DC.

Brendan Smialowski | 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’s vaccine and testing rules for private companies.

Labor Secretary Marty Walsh said in a statement following the Supreme Court ruling that the Labor and Safety Board was reviewing its options to enforce anti-Covid safety standards in the workplace.

“Regardless of the final outcome of this case, OSHA will do everything within its existing authority to hold companies accountable for protecting workers,” Walsh said Thursday.

OSHA still has general authority to require employers to provide a safe workplace and can fine companies if they fail to do so. The agency has investigated thousands of Covid complaints with proposed fines running into the millions since the pandemic began.

The conservative majority of the Supreme Court in its 6-3 ruling called the federal mandate a “blunt instrument” that “makes no distinctions based on industry or risk of exposure to Covid-19.”

But the Supreme Court said OSHA has the power to regulate certain workplaces where workers face an increased threat from Covid.

“Where the virus poses a particular danger due to the special features of the workplace or the workplace, targeted regulations are quite permissible,” writes the court in an unsigned report.

The court said it had “no doubt” that OSHA can take safety measures to protect workers in particularly cramped or crowded environments from Covid.

In other words, OSHA could tailor new regulation targeting high-risk industries like meatpacking with safety measures that don’t include the controversial vaccination rule, according to Jordan Barab, OSHA’s deputy assistant secretary during the Obama administration.

“There are a number of criteria that OSHA could use to make it more risk-based that would likely pass Supreme Court scrutiny,” Barab told CNBC on Friday.

Unions are already pushing 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 mandating improved ventilation, physical distancing, mask requirements and paid leave for all workers

“While we are disappointed with the decision, the majority of the court has clearly recognized OSHA’s authority to protect workers who are at increased risk of contracting COVID-19 in the workplace,” AFL-CIO President Liz Shuler said in an explanation. “OSHA’s responsibility to provide safe working conditions remains unchanged.”

The United Food and Commercial Workers union, which represents 1.3 million people mostly in meatpacking and food processing, wants the White House and businesses to provide free personal protective equipment in addition to what the AFL-CIO is asking for.

The Service Employees International Union, which represents 2 million workers, is urging Congress and states to step in and implement safety measures where the White House has failed, including universal immunizations and broader access to testing.

“In the face of the Supreme Court’s callous abandonment of millions of essential workers, Congress and the states must act urgently to require employers to protect all workers,” SEIU President Mary Kay Henry said in a statement.

More than 20 states operate their own workplace safety plans and some have implemented Covid safety requirements. California, for example, requires all employees and customers to wear masks indoors. Companies must also implement Covid prevention plans, investigate outbreaks and notify employees within a day and offer free testing to fully vaccinated employees, among other things.

New York City introduced a vaccination mandate for all private businesses. Mayor Eric Adams made it clear Friday that the city’s rules are still in effect.

In Chicago, anyone over the age of 5 must have proof of vaccination to dine at restaurants, use the gym, or enter entertainment venues where food is served. Los Angeles has similar rules.

For his part, President Joe Biden called on companies to voluntarily implement the vaccination and testing rules. A number of large companies – including Citigroup, Nike and Columbia Sportswear – have announced plans to lay off unvaccinated workers.

“The court has ruled that my administration cannot use the authority granted to it by Congress to require this action,” 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 doing without rules. General Electric, which employs 174,000 people, said Friday it had suspended vaccination and testing rules.