COVID-19, 9/11 and public health: OSHA failed in late 2001, and the Supreme Court just tied its hands again

In the days and weeks and months after terrorists destroyed the World Trade Center on Sept. 11, 2001, heroes who engaged in rescue and recovery efforts breathed in toxic air. Tens of thousands of those workers have been sickened, and thousands have died. Some of that suffering may well have been prevented if the federal government, including the Occupational Safety and Health Administration, had been more aggressive in safeguarding worker health.

There is no sane historical comparison between the fallout of an attack by hijacked airplanes and a highly contagious virus — but the undeniable fact is, both resulted in potentially deadly hazards hanging in the air we breathe, and both presented specific risks to workers who were just doing their jobs in the midst of those hazards.

Which is to say: Contrary to the insistence of the six-justice majority ruling that Joe Biden’s vaccine-or-test mandate for large employers illegally transformed OSHA’s narrow workplace safety mandate into an overbroad public-health mission, generalized risks like air in which dangerous particles or nasty virions travel can present concentrated and specific harm in workplaces, necessitating a robust response by the federal agency charged with protecting employees’ well-being.

A long day of indoor interactions with dozens of others greatly heightens the risk of viral transmission, which, especially for the unvaccinated, increases the risk of hospitalization and death. Of the 842,873 and counting Americans who have died of COVID, of the 1,700 still dying daily, a not-insignificant share contracted the disease at work, and may not have had they been vaccinated, or had their colleagues been required to test negative once weekly.

If a virus that travels freely from person to person in enclosed spaces across America, which has killed nearly a million of us, isn’t an extreme workplace hazard worthy of being regulated with OSHA’s emergency powers, how on earth does the same agency have the power to curb the risk of prolonged sun exposure for those who work outdoors, or of responders who breathe in pulverized concrete?

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