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AFL-CIO Sues OSHA to Force Temporary Worker-Safety Standard (2)

May 18, 2020, 2:26 PMUpdated: May 18, 2020, 11:11 PM

The AFL-CIO filed a lawsuit to ask a federal court to compel the Occupational Safety and Health Administration to issue an emergency temporary standard to protect workers from the novel coronavirus.

The emergencypetition, filed in the U.S. Court of Appeals for the District of Columbia Circuit on Monday, 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 had not been screened before entering a workplace. If the federation of labor unions is successful, all U.S. workplaces subject to OSHA rules will be required to develop workplace safety plans to safeguard workers against the risk of airborne disease transmission.

The court ordered OSHA to reply to the AFL-CIO’s motion by May 29, and gave the union until June 2 to file a response.

OSHA leadership 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 by saying 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 Department is confident it will prevail in this counterproductive lawsuit,” a DOL spokesperson told Bloomberg Law. “The Department is committed to protecting American workers during the pandemic, and OSHA has been working around the clock to that end.”

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.’”

“It’s truly a sad day in America when working people must sue the organization tasked with protecting our health and safety,” AFL-CIO President Richard Trumka said in a news release announcing the suit.

“But we’ve been left no choice. Millions are infected and nearly 90,000 have died, so it’s beyond urgent that action is taken to protect workers who risk our lives daily to respond to this public health emergency,” Trumka added. “If the Trump administration refuses to act, we must compel them to.”

Calls for a Standard

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.

The lawsuit comes as Loren Sweatt, principal deputy assistant secretary of OSHA, is scheduled to testify before a House Education and Labor subcommittee Wednesday and is likely to field questions about the agency’s decision not to issue an emergency temporary standard.

Trumka and Scalia previously disputed the issue by letter. On April 28—Workers’ Memorial Day—Trumka sent Scalia a letter stating that the agency’s Covid-19 enforcement response plan “is totally deficient, abandoning workers in meatpacking, poultry, grocery, transportation and other critical industries.”

Scalia hit back with a sharply worded response, calling Trumka’s criticism “rhetorically gratifying but false and counterproductive.” He said issuing guidance as needed is a better approach, because it gives regulators the flexibility to adjust as more is learned about how the virus is transmitted.

Trumka instructed AFL-CIO lawyers to explore a motion to require OSHA to issue an emergency standard, said Harold Craig Becker, the union’s general counsel. It is a rare move to enforced safety, but Trumka was familiar with it given his experience as president of the United Mine Workers. Trumka’s father and grandfather died from mining-related respiratory illnesses.

“He’s a lawyer, and health and safety is to close to his heart,” Becker said.

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.

Becker added that the lawsuit is not requesting “a one-size-fits-all standard.”

“We’re saying that there should be a requirement that every employer assess its own workplace using certain standards then decide from a list of protections about what’s appropriate,” Becker added. “What’s possible in an office should be different from what’s appropriate in a plant or grocery store.”

The AFL-CIO requested that OSHA, if the court grants the petition, be given 30 days to develop the standard.

The case is In re: American Federation of Labor and Congress of Industrial Organizations, D.C. Cir., No. 19-1158, 5/18/20.

—With assistance from Ian Kullgren

(Updates with court ordering OSHA to respond and additional comments from Becker.)

To contact the reporter on this story: Fatima Hussein in Washington at fhussein@bloombergenvironment.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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