A few weeks ago, with Covid cases and deaths rising and vaccinations slowing, the Biden administration finally decided to admit the reality that the virus had not been defeated and put forward a new plan to tackle its spread. One of the key pillars of the plan relies on a new regulation from the Occupational and Safety Hazard Administration (OSHA) that requires all employers with more than 100 employees to mandate the Covid-19 vaccination for their employees or subject them to regular, weekly testing. This builds on the administration’s prior commitment to mandate vaccination for federal employees. While this is certainly a good first step, the choice to use OSHA to solely regulate the vaccination of individuals rather than hold employers accountable for Covid safety failures continues the Biden flawed strategy of focusing mostly on individuals and ignoring the context in which the virus spreads.
Formed in 1970, OSHA is the agency of the Department of Labor that regulates workplace safety and investigates and fines employers for violations. If workers have a grievance related to an unsafe work environment, they can file a complaint directly with the agency. The Occupational Safety and Health Act gives the agency the administrative power to issue regulations and also allows them to quickly issue temporary regulations for emergencies, such as pandemics, known as an “Emergency Temporary Standard” (ETS). Since the pandemic began last year, labor advocates have been calling for OSHA to issue a Covid emergency temporary standard for all workplaces. The Trump administration ignored these calls, and during its tenure, workers reported that OSHA was doing a terrible job of responding to and investigating safety complaints.
Within a few days of taking office, President Biden promised that things would be different under his administration, issuing an executive order that directed OSHA to review whether an emergency standard for Covid would be necessary and report back by March 15. March came and went without any update. Finally, when OSHA did release an ETS for Covid in June, mandating safety precautions like capacity limits, personal protective equipment, and ventilation standards, among other things, it applied only to health care workers and no one else. Documents released by Bloomberg Law showed that the initial draft regulation was intended to cover all workers, and would have applied the same safety protocols to all workplaces, but such provisions were killed after intense lobbying from companies. The draft even suggested a “visitor/non employee” face-covering policy, which would have been especially helpful for those in the service sector.
Data from last year shows that health care workers were not the only ones at risk. A study published in Nature that analyzed anonymized mobility data from people’s cell phones in 2020 showed that generally people in wealthier neighborhoods spent more time at home, while people in lower-income neighborhoods were more mobile. They were not browsing the web for recreational sites; they were predominately traveling to work. This was especially the case for those who worked in the food chain, from line cooks, who had the highest mortality rate from Covid, to grocery store workers, to farmworkers and those who worked in meatpacking plants.
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Meatpacking plants were especially egregious. According to one study, they accounted for at least 334,000 cases of Covid infection. Another study linked meatpacking plants to at least 4–8 percent of Covid deaths in the United States as of July 2020. Meat processing companies like Tyson made it difficult for employees to take time off work because they utilize a points based system that penalized absences. Employees could only get time off that would not penalize their record once they received confirmation of a positive test. Concerns for safety were repeatedly brushed off. Early in the pandemic, workers faced retaliation for wearing masks at a Wisconsin meat packing plant, after the company refused to provide their own. Sometimes, this indifference became cruelty—seven managers at one Tyson plant in Iowa were fired for having a betting ring around how many workers would get Covid.
An emergency temporary standard for Covid could have alleviated some of these issues by mandating masks and capacity limits (including for retail stores), requiring all employers to have a daily testing program for workers and requiring paid time off should they test positive. Such a standard could also lay out requirements for ventilation—setting standards for equipment and “air changes per hour” (that is, how often the air is completely replaced in a hour—the higher the number, the better). Steps like this are already outlined by OSHA, but only as “recommended guidance,” not regulation. These changes are all the more urgent as the employers of workers who have been telecommuting start requiring them to return to the office.
By using OSHA to only mandate vaccination, the administration is choosing to use only one layer of protection while the pandemic continues to rage on. For instance, the new standard sets up testing as an alternative to vaccination, rather than something that should be encouraged as an active infection control strategy by catching cases as they happen—among the unvaccinated and vaccinated. Even vaccinated parents, unknowingly, could take the virus back home and spread it to children and vulnerable family members.
While the standard does acknowledge that people need vaccine sick leave to get vaccinated and recover from potential side effects, it totally ignores the fact that people need paid sick leave and family leave to recover from Covid or to take care of family members who have Covid. While this paid sick leave has been temporarily required through the Families First Coronavirus Response Act, those provisions are set to expire at the end of this month. A recent study found that more than half of US workers were unaware of these sick leave regulations. Without mandatory paid sick leave, workers are more likely to come into work sick because they cannot afford to lose a day of wages.
The vaccine sick leave provided also ignores the nature of protection the vaccines provide. Data has shown that only once someone is considered fully vaccinated (that is with two doses of Moderna or Pfizer vaccine—the one-dose J&J also offers protection) are they considered the most protected from the delta variant. It takes at least 5-6 weeks to get fully vaccinated and until then, someone is at risk from exposure. Comprehensive vaccine sick leave would take this into account and extend time off for that period of time—keeping them at home to limit the risk of infection. This additional time off could also serve as an incentive to get vaccinated. Safety protocols would also remain in place.
By ignoring the need for comprehensive infection control in the workplace, the administration is also undermining its own vaccination effort. When a group of unvaccinated people were asked, for a piece for The Atlantic, why they didn’t get vaccinated, some cited the fact that they had already gotten Covid from working in-person, so why get the vaccine? The government unintentionally sent a similar message to frontline workers when, with the exception of health care workers, they were excluded from the early prioritization of the vaccine. The message was: Even though you are exposed, you can afford to wait. If a workplace is not acting like the pandemic is ongoing, why would workers feel the need to get vaccinated?
Even if the regulations are limited to just ensuring that people get vaccinated, the question of enforcement remains. OSHA is a vital but small agency that does not possess the staff or budget to thoroughly protect many workers in the United States. Any conversation about using the powers of OSHA in this way must include a discussion about making OSHA bigger and more powerful.
The Biden administration’s plan uses an agency meant to protect workers to put the burden of Covid safety on them. While getting vaccinated is a responsibility we all have to society, ensuring a safe workplace is a responsibility our employers have to us. If we all have to adapt to “learn to live with the virus,” so too should our workplaces.
