Who is OSHA?
The Occupational Safety and Health Administration (OSHA) was established by act of Congress in 1970 “to ensure safe and healthful working conditions for workers by setting and enforcing standards and by providing training, outreach, education and assistance” (OSHA, 2021). It is a part of the U.S. Department of Labor. OSHA’s mission covers most private employers, and is principally focused on creating safety standards for the protection of workers and occupants to minimize a variety of workplace hazards. Notably, OSHA has proven invaluable in the construction, manufacturing, maritime, industrial production, and agriculture sectors. Example workplace standards include limitations on exposure to chemicals and solvents, task lighting thresholds, and minimum fresh air standards.
Recalling Typhoid Mary?
Those who are fans of history might recall the tragic story of Typhoid Mary, who worked as a cook in New York City in the early 1900s and unknowingly spread Typhoid disease to an estimated 3,000 people, although she was largely asymptomatic herself (NIH, 2021). Following an investigation identifying her as a positive carrier of the disease, she was quarantined against her will in a manner that continues to raise a host of ethical and empathetic questions in terms of public health policy and health administration practices.
Fast forward to today, OSHA is in the news as the issuing agency of an “emergency temporary standard” (ETS) regarding COVID-19 vaccination requirements for companies of 100 or more employees (unless excepted by medical and/or religious exemption). The ETS was orchestrated by the current administration, which they allegedly justify as a means to compel recalcitrant employees to be fully vaccinated in an effort to retard the spread of COVID-19. The order and its implementation are politically galvanizing, and the science behind it is somewhat debatable given recent findings which reveal “breakthrough” cases of COVID in fully vaccination individuals, who may unwittingly spread it to others. Sound familiar? Indeed, an October 2021 study from the University of California Davis, found that there was “no significant difference in viral load between vaccinated and unvaccinated people who tested positive for the delta variant of SARS-CoV-2. It also found no significant difference between infected people with or without symptoms” (UC Davis, 2021).
A Bridge Too Far?
Just last week, the 5th Circuit Federal Appeals Court in New Orleans announced suspension of COVID-19 vaccination requirements for private employers with more than 100 employees on behalf of plaintiffs in five states that includes Utah, Louisiana, South Carolina, Texas, and Mississippi on the basis that the ETF presents “grave statutory and constitutional issues” (Washington Post, 2021). More states and private lawsuits are expected to follow, and it is likely that these cases will eventually wind their way to the U.S. Supreme Court.
What Can Commercial Real Estate Owners Expect?
Side stepping the statutory issue of whether or not a pathogen such as a virus falls within the purview of OSHA, property owners such as employers will likely pursue a conversative approach with respect to ensuring the safety for their employees (and visitors). However, a juggernaut of a precedent is being set, and the long-term implications of the specter of other workplace safety standards as potentially demanded by employers and/or employees may be forged. For example, will building owners be required to install pathogen detection modules in their building air handling systems? Will there be a requirement on building owners to create partition systems to monitor, quarantine, and remediate parts of the facility where pathogens are detected? Finally, will patrons demand that buildings comply with certain disinfection protocols as a condition of lease, utilization, and access?
The stage has been set for new regulatory standards as well as litigation from those quarters who seek commonsense approaches that balances risk vs. pragmatic considerations without impinging on the liberties we enjoy. As this issue plays out in the U.S. judicial system, it is an imperative that the voice of building owners be heard to assure that their perspectives and interests be represented as key stakeholders in this process.