D.C. Cir. Rejects AFL-CIO Request for Emergency Virus Standard

The U.S. Court of Appeals for the District of Columbia Circuit has rejected the AFL-CIO’s request for the court to compel OSHA to issue an emergency temporary standard to protect workers from the novel coronavirus.

The federation of labor unions was seeking the standard so all U.S. workplaces subject to Occupational Safety and Health Administration rules would be required to develop workplace safety plans to safeguard workers against the risk of airborne disease transmission.

OSHA during the pandemic has resisted calls from organized labor and Democratic lawmakers to issue emergency temporary standards for infectious diseases. Labor Secretary Eugene Scalia has defended OSHA’s handling of the issue, and has said the agency can bring enforcement actions under the Occupational Safety and Health Act’s “general duty” clause, which requires employers to maintain a hazard-free workplace.

The federation, which filed its petition May 18, outlines how tens of thousands of workers have been infected on the job through exposure to ill co-workers, patients, customers, and members of the public who hadn’t been screened before entering a workplace.

“The OSHA’s decision not to issue an ETS is entitled to considerable deference,” the court said in its Thursday order. “In light of the unprecedented nature of the COVID-19 pandemic, as well as the regulatory tools that the OSHA has at its disposal to ensure that employers are maintaining hazard-free work environments, the OSHA reasonably determined that an ETS is not necessary at this time.”

The agency was pleased with the decision, and that the court “agreed that OSHA reasonably determined that its existing statutory and regulatory tools are protecting America’s workers and that an emergency temporary standard is not necessary at this time,” Solicitor of Labor Kate O’Scannlain and Principal Deputy Assistant Secretary for OSHA Loren Sweatt said in a joint statement.

“OSHA will continue to enforce the law and offer guidance to employers and employees to keep America’s workplaces safe,” the statement said.

Craig Becker, the AFL-CIO’s attorney, said his organization is “disappointed that three judges on the D.C. Circuit did not deem the lives of American workers worthy of holding argument or issuing a full opinion about.”

“It is exactly the ‘unprecedented nature of the COVID-19 pandemic’ that requires OSHA to issue an enforceable standard under the law and none of the other ‘regulatory tools’ require employers to do anything at all,” Becker said, adding that the AFL-CIO is considering whether to petition for rehearing or rehearing en banc.

The AFL-CIO, whose member unions represent more than 12 million workers, argued in the petition that the agency’s unwillingness to issue an emergency standard “constitutes an abuse of agency discretion so blatant and of ‘such magnitude’ as to amount to a clear ‘abdication of statutory responsibility.’”

Union leaders decried the court’s decision.

“People are always saying what heroes the workers are to be at work during the pandemic,” said Mike Wright, safety and health director for the United Steelworkers. “But as far as protecting them, it’s ‘Nah, we’re not going to do that.’”

Democratic lawmakers have tried unsuccessfully to add language to previous coronavirus-response legislation that would have required OSHA to issue an emergency temporary standard covering employees whose jobs have a high degree of potential exposure.

OSHA has released about 15 directives and guides for employers and workers during the pandemic, covering a range of concerns from acceptable use of N95 respirators to recommendations for manufacturers.

The case is In re: AFL-CIO, D.C. Cir., No. 19-1158, 6/11/20.