WASHINGTON—More than 83 million workers face increased danger now of becoming infected with the coronavirus because of the latest outrageous ruling of the United States Supreme Court.
By a 6-3 vote on ideological lines—Republican-named justices for, Democratic-named justices against—the U.S. Supreme Court sided with right-wing and corporate interests and tossed out protections for 84 million workers, and potentially millions of other people, against the still-raging coronavirus pandemic.
The right-wing Court majority—all vaccinated, masked up, and socially distant from one another—said Democratic President Joe Biden and his Occupational Safety and Health Administration went too far in proposing an Emergency Temporary Standard (ETS) to order all businesses with at least 100 workers to ensure their workers are masked and vaccinated, or have the workers take and pass weekly coronavirus tests. The justices themselves, they were essentially saying, are entitled to far more protections on the job than millions of workers.
The court majority, all named by Republican presidents, sided with the corporate class, just as it has in a long line of cases stretching back decades, AFL-CIO General Counsel Craig Becker noted last year.
“Imposing a vaccine mandate on 84 million Americans in response to a worldwide pandemic is simply not ‘part of what the agency was built for’,” the majority declared.
“The regulation operates as a blunt instrument. It draws no distinctions based on industry or risk of exposure to Covid-19 (the coronavirus). Thus, most lifeguards and linemen face the same regulations as do medics and meat-packers.”
Split on second ruling
In a second ruling, with less impact, the justices split 5-4 and said Biden’s Health and Human Services Department could require hospitals and nursing homes to protect their workers, a far smaller number.
The federal Center for Medicare and Medicaid Services made such protection a condition of getting federal funds to pay for patient care. Those facilities count on the federal cash for almost half their receipts. The right and so-called “Christian” businesses challenged that rule, too.
GOP-named Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett also wanted to toss protections for the health care workers. Former Oval Office occupant and pandemic denier Donald Trump nominated Gorsuch and Coney Barrett.
The court’s ruling disappointed the AFL-CIO. “While infections and hospitalizations surge, we again urge the Biden administration to require employers to provide protections beyond vaccines. OSHA must uphold the emergency Covid-19 (coronavirus) standard for health care workers and issue an emergency standard to ensure all at-risk workers are provided layers of protections against Covid-19 transmission at work like improved ventilation, distancing, masking, and paid leave. We will not beat this pandemic until we stop the spread of the virus at work,” it added.
In the larger decision involving OSHA’s standard, dissenting Democratic-named Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dryly noted the court has no expertise in job safety and health, much less the health of the entire society—and should leave the decision to those who do.
“Acting outside of its competence and without legal basis, the court displaces the judgments of the government officials given the responsibility to respond to workplace health emergencies. We respectfully dissent,” they wrote.
In a brief to the court, the AFL-CIO and several unions argued strongly for the OSHA standard and for protecting the health care workers as well. The labor-backed National Council on Occupational Safety and Health had previously blasted the lower court ban on OSHA’s rule. The court majority upheld that ban.
“It’s shameful and outrageous to see anyone put politics ahead of public health,” National COSH co-Executive Director Marcy Goldstein-Gelb said then. “The judges who wrote this decision have probably been able to work safely from home throughout this pandemic. They should go right now to a poultry plant, a nursing home, a warehouse, or another workplace where Covid-19 (the coronavirus) is still spreading, to see the real-life impact of their grossly irresponsible ruling.”
Needed to protect workers
The union brief to the High Court said OSHA’s ETS is needed to protect private-sector workers and pointed out that’s the key goal of the Occupational Safety and Health Act, especially in the unusual circumstances of the coronavirus pandemic. The virus has killed 846,488 people since the official pandemic declaration in March 2020. That’s 30,000 people short of killing off everyone in Indianapolis.
The right-wing and corporate interests, led by the National Federation of Independent Business, told the justices, in an unusual hearing on January 7, that OSHA’s rule would cause massive disruptions and, their lawyer said, cut profits. Workers, that lawyer predicted, would desert in droves.
The GOP-named majority conceded OSHA has specific “authority to regulate occupation-specific risks related to Covid–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible,” they said. But that’s all.
OSHA can’t use rules covering workplaces to regulate the entire society, they declared.
“OSHA’s indiscriminate approach fails to account for this crucial distinction—between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an “occupational safety or health standard,” the majority said (their emphasis).
But those justices also ducked the profit motive behind the challenge to OSHA’s rule—a motive corporate interests have used to challenge everything OSHA does, not to mention its very existence for the last 51 years. And though nobody raised the point before the court, the justices said the costs of the OSHA mandate—the weekly tests—would be loaded on workers.
“We are told by the states and the employers that OSHA’s mandate will force them to incur billions of dollars in unrecoverable compliance costs and will cause hundreds of thousands of employees to leave their jobs,” the majority said. “For its part, the government says the mandate will save over 6,500 lives and prevent hundreds of thousands of hospitalizations. It is not our role to weigh such tradeoffs,” the majority said.
Deciding who’s responsible for ordering businesses and/or workers to foot the bill is up to Congress, the six said. Gorsuch, Thomas, and Alito, in a concurring opinion, wanted to leave that decision to state and local officials, too. Some 27 Republican-run states reject masking, distancing, or vaccinations, or all three.
And while the justices didn’t raise the profits point, they did say—which nobody did in their briefs—that OSHA’s rule orders workers “to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense.” The jurists added: “This is no everyday exercise of federal power. It is instead a significant encroachment into the lives—and health—of a vast number of employees.
“We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance,” the court majority said. Congress actually did, Biden’s Solicitor General told the justices the week before. The American Rescue Act—the first coronavirus aid bill—gave OSHA $100 million: $90 million to draft a standard and $10 million to enforce it.
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