State Emergency Workplace Rules Spark a New Epidemic: Litigation

Labor Secretary Eugene Scalia has resisted calls for the Occupational Safety and Health Administration to create a national emergency rule to protect workers from the coronavirus pandemic, relying instead on existing safety law, prompting several states to promulgate rules of their own.

The result, management side attorneys say, will almost certainly be lawsuits against those places that have taken Covid-19 safety protocols into their own hands.

“The challenges could come from either side—from businesses who say agencies didn’t follow proper rulemaking and challenges can come from safety advocates who say this rule isn’t going far enough,” says Aaron R. Gelb, an employment and safety attorney at Conn Maciel Carey LLP in Chicago.

In July, Virginia became the first state to implement an emergency temporary standard that requires employers to establish coronavirus protection plans.

Just two months later, the state was hit with a lawsuit brought in the Circuit Court for the City of Richmond by the Virginia Manufacturers Association, alleging Gov. Ralph Northam and the state’s Safety and Health Codes Board violated the Virginia Administrative Process Act when they did not follow proper rulemaking procedures.

Still more cases are anticipated as places like Oregon and California finalize their Covid-19 specific rules as the absence of a uniform standard, and the need to meet a patchwork of state requirements will create an “inevitable burden” to litigate, said Kathryn M. McMahon, a partner in Conn Maciel Carey’s Washington, D.C., office.

Scalia and OSHA’s top official, Loren Sweatt, have repeatedly said a national emergency temporary standard isn’t necessary. Spurning calls from House Republicans and others, they contend that the Occupational Safety and Health Act’s broad General Duty Clause, which requires employers to provide workplaces free of known hazards, is the better enforcement tool.

Challenges to Come?

The Michigan Occupational Safety and Health Administration is the latest agency to compel businesses in the state to assess Covid-19 exposure risks for employees, create a virus response plan, and establish workplace cleaning and training procedures under state emergency safety rules.

The Michigan OSHA rules—some of which mirror provisions in Gov. Gretchen Whitmer’s (D) pandemic executive orders that the Michigan Supreme Court struck down earlier this month—will remain in effect for six months.

Wendy Block, vice president of business advocacy for the Michigan Chamber of Commerce, says the Chamber has not yet decided on whether it will file suit against the state over those latest measures, but says the group is exploring case law that would bolster a potential claim.

She cites the analysis in a May ruling by the Michigan Court of Appeals that struck down a Whitmer emergency declaration over underage vaping. Vape shop owners requested an injunction to stop a ban on the sale of vaping products. Judges Jane E. Markey, Kathleen Jansen and Mark T. Boonstra ruled that the governor is entitled to due deference with regard to the finding of an emergency, “but not complete capitulation.”

Efforts to compel an emergency temporary standard in federal courts have largely failed on the part of unions and federations.

The AFL-CIO lost its attempt in June and the United Mine Workers of America union also failed in trying to compel the Mine Safety and Health Administration to issue a rule protecting miners. Courts in both cases deferred to the agencies, which have maintained that an emergency temporary standard is not necessary in their efforts to regulate businesses.

Rebecca Reindel, director of occupational safety and health for the AFL-CIO, says she expects to see more states implement their own Covid-19 protections. “Businesses who operate in multiple states are going to have to follow multiple requirements,” Reindel said.

“Certainly it’d be easier to have one standard across the board that would raise the floor for all workers and be more straightforward for employers across the country.”

Management Worries

Courtney M. Malveaux, a partner at Jackson Lewis P.C. in Richmond, told Bloomberg Law that the downsides of national or state ETS is that as soon as an emergency standard is instituted, it can become obsolete as guidance changes.

“The science related to COVID-19 is constantly evolving,” he said. “Thus, a standard based on the science at one point in time is stuck in the cryogenic freeze of that time until the standard is revised. But even if you continually revise the standard, you ultimately wind up at square one again.”

“OSHA may do well to treat this as the public health matter that it is, rather than as a workplace hazard. OSHA already has appropriate standards in its toolbox, including standards governing respirators and PPE and the general duty clause.”

Galb at Conn Maciel Carey says firms will look to the “wrinkles” in rules that could be deemed cumbersome.

“Where employers are required to hire or appoint Covid coordinators, or keep records of screenings, I can see these instances prompting challenges if employers feel they’re excessively burdensome.”