Op-Ed: Here’s how Biden addresses the Supreme Court’s grievous mistakes in the vax or mask case

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The Supreme Court has a lot to dislike Decide Invalidate the Biden administration’s requirement for workers to be vaccinated against COVID-19 or to test and wear masks while on the job.

Court’s partisan ruling limits occupational health and safety administration’s express authority To “protect employees” from “serious dangers” of “new dangers”. Conservative justices replaced the well-thought-out expertise of public health officials with their own judgment. In the end, they issued a decision that, if not corrected, would expose millions of Americans to serious workplace health risks and potentially lead to thousands of unnecessary deaths.

Worried Americans are right to question a court that would err so badly.A Biden administration is right follow suitBut as it has done, it must not overlook a larger obligation: the need to respond to the ruling in any way the law allows to protect American workers. Fortunately, Majority opinion in this case provides a surprisingly straightforward way for the government to do this.

Start with the actual reasons the courts use to block OSHA Vaccination or mask requirementThe court did not challenge the agency’s legal authority to protect workers from dangers posed by the pandemic. Instead, it argues that OSHA requires employers to enforce what the court called “Vaccine Authorization. (In fact, OSHA’s emergency standards allow employers to choose between requiring all workers to be vaccinated or requiring unvaccinated employees to be tested weekly and to wear masks at work).

The problem the conservative judge found with the so-called vaccine mandate was that it “is very different from the workplace rules that OSHA typically enforces.”Other workplace safety regulations protect workers, they say while they work; Vaccines can also protect workers in and outside the workplace. As a result, most believe OSHA’s vaccine rules are not allowed because vaccines “cannot be withdrawn at the end of the workday.”

However, high-quality masks can be removed after get off work. A quick test can be done at the start of the job or within a few minutes before. So, according to the conservative majority itself, OSHA will require workers to test and wear masks while on the job, within its purview.Such a rule would resolve court complaints against previous OSHA orders, as it was limited to workplace The danger posed by COVID-19 does not need to be extended further.In fact, OSHA has promulgated medical exam and face covering Requirements in other work settings further suggest that testing and masking rules will be firmly within the agency’s purview.

Of course, some employers may be reluctant to force all employees to test and wear masks every week, especially those who correctly recognize that there is a simple, proven alternative that could also be effective in reducing the spread of the virus: vaccinations. Therefore, OSHA’s new emergency rule should allow employers to waive the requirement for on-the-job testing and mask-wearing for employees who choose to be vaccinated. (There’s nothing stopping vaccinated people from wearing masks, which increases their protection.)

In other words, OSHA should rewrite its rules in reverse order. Instead of requiring employers to adopt a mandatory vaccination policy and requiring employer exceptions for testing and mask-wearing for unvaccinated workers, OSHA’s new regulations require employers to require workers to test and wear masks first, but allow employers to only be waive this rule. vaccination.

You might think it would be too clever to just reverse the order of these requirements.But if it seems so, it’s only because the court’s opinion on Thursday was itself smart. After all, nothing in the relevant regulations prohibits OSHA from preventing workplace hazards through requirements that have the collateral effect of preventing similar hazards outside of work.

In fact, an order to reformulate OSHA’s COVID workplace safety rules as masks or vax would be perfectly in line with the conservative justices’ majority.them Admission, for example, “targeted regulations”, “accounting for [the] The key distinction between “occupational risk and more general risk” would be “fully permissible”.This is exactly the rule that requires workers to cover up only when working able to do.

Of course, under the revised rules on masks or vaccines, it’s possible that more employees will choose to be tested and wear masks at work rather than vaccinated. But when it comes to choosing between getting a vaccine and shouldering the burden of testing and wearing masks on a daily basis, at least some people will choose the former.

Most importantly, even if the end effect of the rule is to spread testing and mask-wearing widely in workplaces across the U.S., it would still represent a huge advance in public health. dozens of states Masks are not currently required indoors despite good evidence Masks save lives enjoy broad public support. The Supreme Court may have delivered a dangerous and unwarranted blow to American workers. But a Biden administration can act decisively to protect them at this critical moment.

Aaron Tang is a professor of law at the University of California, Davis, and a former legal clerk to Judge Sonia Sotomayor. @AaronTangLaw