On January 13th, 2022 the Supreme Court of the United States issued an opinion that the Occupational Health and Safety Administration (OSHA) does not have the authority to require employers with at least 100 employees to either (a) require their employees to get vaccinated for COVID, (b) require their employees to mask and test weekly for COVID, or (c) submit evidence that significant steps were taken in the workplace to reduce exposure to COVID. Largely the logic here was that COVID is not a risk limited to the workplace, so OSHA is overstepping its authority by requiring workplaces to address it. However, in a concurrence (a separate opinion agreeing with the overall ruling but for different reasons) Justices Gorsuch, Thomas, and Alito essentially argue that federal agencies like OSHA lack the power to make these types of regulations, rather that power is held exclusively by congress.
Why is this important? There is clear indication from this court that it seeks to limit the power of federal agencies to require organizations to engage in certain activities. In this case, requiring vaccines, but in upcoming cases regulations regarding emissions are being evaluated. This logic could easily be applied to other workplace hazards that are regulated (e.g., exposure to noise/sound/toxins). This means in the coming years we should expect to see a shift that protections that were “guaranteed,” or at least enforceable, by federal regulations, are now going to be closer to guidelines that companies can choose to adhere to or not. But, it is likely that workers will continue to expect that their employers protect them from hazards in the workplace, especially since this expectation has had legal backing over the past decades.
This brings us to psychological contract breach. The psychological contract is an employee’s expectations about what “they owe to their employers, and what their employers owe to them” (Robins, 1996, p. 574). If an employee feels that their employer is not meeting these expectations, they feel their psychological contract has been breached, which has significant negative outcomes for the employer (lower employee job satisfaction, increased turnover intentions, lower performance; Zhao et al., 2007). The focus of much of the original psychological contract breach research (in the 1990s and early 2000s) was on the effects of corporate downsizing and instability on what was previously seen as a lifelong guarantee of work from one organization.
But, we’ve seen an expansion of psychological contract breach to include breaches regarding the safety of employees (Walker & Hutton, 2006). In the current climate it is possible that employees feel their psychological contracts have been breached by being forced to continue to work on the front lines without significant protections from COVID or additional help/pay as COVID reduces the workforce. Moving forward, however, these safety-related psychological contract breaches are likely to increase in the coming years as federal regulations regarding employee safety will be called into question by the current Supreme Court.
So, what is an employer to do? Employee safety needs to be placed front and center in any corporate decisions. If your company was adhering to safety regulations solely for legal purposes, it will be important to continue to these practices and policies moving forward. The issue with safety-related policies for companies, is that they are exclusively costs in leger. They don’t have clear links to improved productivity (often can reduce it). They don’t often yield tangible assets. But they do have a significant impact on employee outcomes, which are often also ignored in the leger. Figuring out ways to quantify, record, and report safety related information will help keep the company focusing on employee health, rather than drifting toward cost-cutting measures that will likely undermine employee safety and breach employees’ psychological contracts.
What do you do as an employee? One option is leave companies that don’t protect your safety, but in many instances, this is not a practical option. It’s possible there is only one major employer in your town, or you have particular benefits tying you to that employer. In this case, consider unionizing the create a formal entity that can negotiate formal contracts with your employer surrounding things like safety. If this also isn’t an option, negotiate with your supervisor to ensure that your personal exposure to hazards is minimized, or at least, better compensated.
TL;DR: Employers are likely going to have more leeway in how they protect employee safety, but it is important to continue protecting employee safety at current levels (or better) to avoid breaching employees’ expectations of the organization.
-Keaton