COVID is killing the nation’s workforce — The Supreme Court needs to act now

American workers are dying at an unprecedented rate — thousands of healthcare workers have already been killed by COVID-19. The Supreme Court may allow this to continue.

On Monday, the Centers for Disease Control and Prevention reported 807,050 healthcare worker infections and 3,067 deaths. But they acknowledge that this is a vast undercount — the tally is based on fewer than 20 percent of COVID-19 case reports that list the occupation of the infected person. The actual count could be 4-5 times greater. Unofficial tallies have counted twice as many deaths as the CDC. Still, even the lower number is 30 times higher than usual — the U.S. Bureau of Labor Statistics reported only 94 healthcare work-related deaths in 2019. 

The pandemic has resulted in perhaps the greatest workplace catastrophe in American history.

The lack of federal protection for healthcare workers during the first 18 months of the pandemic has been shocking. The SARS-CoV2 virus reached the U.S. in January 2020. On March 13, 2020, President Trump declared the COVID-19 pandemic a national emergency. But despite regulatory requirements, in May 2020, the Occupational Safety and Health Administration (OSHA) chose not to collect reports of healthcare worker cases or deaths, using the excuse that they could not determine where they were infected, even though they categorized the healthcare setting as ‘very high exposure risk.’ It wasn’t until September 2020, after multiple lawsuits from industries demanding greater COVID-19 safety oversight, that OSHA began consistently issuing COVID-19–associated healthcare workplace safety citations.

After thousands of documented healthcare worker deaths, the federal government under the new Biden administration acted to protect workers. On June 21, OSHA adopted a Healthcare Emergency Temporary Standard protecting workers from COVID and requiring case reporting in healthcare settings. In September, President Biden issued an executive order requiring that all federal contractors require COVID vaccination for their employees. Finally, in November, the Centers for Medicare and Medicaid Services promulgated a rule requiring healthcare and nursing home workers to be vaccinated against COVID-19 to protect the workers and those under their care.  

And yet, as soon as the rules were issued, dozens of businesses and Republican-led states filed suits to stop them. 

OSHA and CMS clearly have the authority to safeguard workers and the safety of healthcare settings. OSHA has a long history of regulating other infectious pathogens to protect workers, and the Occupational Safety and Health Act of 1970 gives the agency the ability to promulgate emergency temporary standards to mitigate “grave dangers” in the workplace. Congress also granted Medicare and Medicaid programs the authority to require healthcare settings to meet standards “necessary in the interest of the health and safety” for their recipients. What could be more grave than 100 healthcare worker deaths a week during the pandemic peaks or the potential deaths of thousands of high-risk elderly and chronically-ill people covered by Medicare and Medicaid?

COVID-19 vaccines are remarkably safe and clearly save lives. Although masks and social distancing have some benefits, the science is certain that vaccinations reduce death and infection rates by up to 95 percent. Vaccine mandates also work. Despite a very vocal minority of opponents, upwards of 90 percent of employees in multiple workplace settings accepted vaccination after mandates were implemented.

It’s been almost two years, but we are still in an emergency. As of today, more than 1,400 Americans are dying from COVID-19 every day. As recently as September, the CDC was reporting more than 100 healthcare worker deaths a week. And now the omicron surge is upon us. Hospitals are overwhelmed across the nation. Healthcare workers are sick, dying, depressed. We cannot turn a blind eye to these horrible facts.  

Within days, the Supreme Court will rule on the lawsuits against the OSHA and CMS rules. If the justices uphold the suits and undermine these critical protections, thousands more workers and high-risk individuals will die. If the federal agencies mandated to protect workers and the population cannot take action during this national emergency, when can they?  

The Supreme Court must let agencies act on the best scientific evidence available to save lives now and during any future public health crisis. Too many lives are at risk.

Thomas D. Kirsch, MD, MPH, is a professor of Emergency Medicine at the George Washington University School of Medicine. He is a disaster scientist and the author of more than 150 scientific publications and popular essays. Twitter: @DisasterProf