January 24, 2022

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What the Supreme Court’s OSHA Ruling Means

2 min read

The Supreme Court’s decision to stay the Labor Department’s “vaccine or test” rule was a significant setback for the agency I once headed. It is also a vivid illustration of the difficulties ahead for President Biden’s aggressive regulatory agenda.

At the heart of the court’s ruling was the conclusion that the Occupational Safety and Health Administration, which is part of the Labor Department, is “limited to regulating ‘work-related dangers,’ ” but Covid-19 “is not an occupational hazard in most” workplaces. The virus is now among the “hazards of daily life,” the court said, encountered at home, schools, sporting events and virtually everywhere else.

And so, while OSHA could regulate the virus where it poses special danger because of particular features of an employer’s job or workplace—a lab where researchers work with the virus, for example, or a plant where employees are “working in particularly crowded or cramped” conditions—regulating the virus in workplaces generally exceeded OSHA’s power.

The court’s ruling will make it harder for the Labor Department to continue the more measured Covid regulatory program it put in place when I was labor secretary. In 2020, the department crafted a comprehensive program to address Covid through detailed guidance to workers and employers, workplace inspections and, where appropriate, enforcement of existing regulations and the “general duty clause” of the OSHA law, which obligates employers to keep the workplace free from “recognized hazards” of “death or serious physical harm.”

I resisted calls to issue a rule invoking the “emergency” authority used in the Biden mandate, for several reasons. I believed that guidance and the agency’s existing inspection and enforcement authority gave us sufficient tools to protect workers from Covid, particularly given that states, locales and most employers were also intensely…

2022-01-14 18:41:00

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