OSHA’s COVID ETS – Does the Supreme Court Ruling Matter?

As I write this, the Supreme Court is considering the constitutionality of the OSHA COVID Emergency Temporary Standard (ETS).  I wonder if the final decision really matters much if our goal as safety professionals and our charge as responsible employers is to provide our employees with a safe, productive workplace.

When I was a kid, polio was considered one of the most dangerous of childhood diseases.  One of my grade school classmates had a little brother who had paralytic polio, so this wasn’t just a theoretical concept.  When in the late 1950’s a vaccine was introduced, there wasn’t much hesitation – we all ate the sugar cubes (you had to be there) because the downside of contracting polio was a mortality rate approaching 30% for some age groups.

The problem with COVID today is that too many of us are looking at it as a political issue as opposed to a health issue.  Nearly two years ago when the pandemic began, we had little knowledge of the virus, how it worked and who was at risk. Since then, we have learned a lot about COVID.  We know that people who have been vaccinated (~62% of the US population) are way less likely to get sick enough to require hospitalization, even if they remain vulnerable to new variants. We know that people who have had COVID and carry the antibodies (~ 60 million cases reported, or 18% of the US population) have nearly the same level of protection as vaccinations confer.  We know that the majority of patients presenting to the hospital with serious COVID symptoms have not been vaccinated.  We know that reported adverse side effects from vaccinations are almost zero.  I am not a doctor, nor do I play one on TV, but it seems to me that we can draw some conclusions here:

• Being vaccinated is better than not being vaccinated for most of us;
• The more of my employees who are vaccinated, the less likely that my remaining employees will be at risk of serious illness;
• The more of my employees who are vaccinated, the less likely the organization is exposed to possibly damaging shutdowns;
• Recent guidance from a growing body of epidemiologists is that COVID is not going to go away – it is here to stay in one form or another, so our focus needs to change from “beating COVID” to “living with COVID” – managing the apparently shrinking risk (omicron is clearly less dangerous than previous variants even if more easily caught).

So, with all this in mind, my question to you is: does it really matter what the Supreme Court decides?  If they support the OSHA COVID ETS, then you must comply.  If they strike down the standard, then what? If you believe that your organization has responsibility under OSHA’s due care standard, then maybe a less invasive approach to the OSHA proposal makes sense to balance your worker’s wellbeing, much like the Americans with Disability Act balances worker rights against company needs.

I am interested in knowing how all of you feel about this, because we make better policy together.  Please weigh in below and we will publish the results as they become available.

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