Labor Department vows to protect workers from Covid after mandate

The Labor Department has vowed to use its authority to protect workers from Covid, after the Supreme Court blocked the Biden administration’s vaccine and testing rules for private businesses.

Labor Secretary Marty Walsh, in a statement after the high court’s ruling, said the Occupational and Safety Administration is evaluating its options to enforce safety standards against Covid in the workplace.

“Regardless of the ultimate outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers,” Walsh said on Thursday.

OSHA still has general authority requiring employers to maintain a safe workplace and can fine businesses if they fail to do so. The agency has investigated thousands of Covid complaints with millions of dollars in proposed fines since the pandemic began.

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

However, the high court said OSHA does have the authority to regulate specific workplaces where workers face a heighted threat from Covid.

“Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible,” the court wrote in an unsigned opinion.

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

In other words, OSHA could tailor a new regulation that targets high-risk industries, such as meatpacking, with safety measures that do not include the controversial vaccine rule, according Jordan Barab, deputy assistant secretary of OSHA during the Obama administration.

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

Labor unions are already pushing in that direction. The AFL-CIO, the largest federation of unions in the U.S., called on the White House to issue a new workplace safety standard that would require improved ventilation, physical distancing, masking and paid leave for all workers

“While we are disappointed by the decision, the court’s majority clearly acknowledged OSHA’s authority to protect workers who face heightened risks of contracting Covid-19 in the workplace,” AFL-CIO President Liz Shuler said in a statement. “OSHA’s responsibility to provide safe working conditions remains firmly in place.”

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

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