AFL-CIO Asks Full D.C. Circuit to Review Virus-Standard Ruling

The AFL-CIO has requested that the full U.S. Court of Appeals for the District of Columbia Circuit review a three-judge panel’s decision to reject the labor federation’s call for OSHA to issue an emergency temporary standard to protect workers from the novel coronavirus—a petition Bloomberg Law previewed earlier this week.

The panel’s ruling, issued June 11, “misstates OSHA’s express rationale as to why” an emergency Covid-19 standard wasn’t needed, the AFL-CIO said in its petition for en banc review, filed late Thursday night.

The Occupational Safety and Health Administration, in declining the federation’s call for a temporary standard, relied primarily on its issuance of nonbinding guidance; on the Occupational Safety and Health Act’s “general duty” clause, which requires employers to maintain a hazard-free workplace; and on actions other governmental entities and private industry have taken, the petition said.

“OSHA did not find that its existing mandatory standards"—including the general duty clause—were enough to support its conclusion that an emergency temporary standard wasn’t necessary, “and thus tacitly admitted otherwise,” the petition said.

“Having misstated the express rationale for OSHA’s refusal to issue an ETS, the panel wholly failed to address the AFL-CIO’s argument that OSHA’s actual rationale is flatly inconsistent with the OSH Act,” it said.

The AFL-CIO, other labor groups, and congressional Democrats have pressured OSHA to issue an emergency temporary standard that would require employers to take steps to protect workers from airborne transmission of pathogens. Labor Secretary Eugene Scalia has said the Occupational Safety and Health Act’s general duty clause is the better enforcement tool.

The case is In re: AFL-CIO, D.C. Cir. App., No. 20-01158, 6/18/20.