The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), along with other unions, advocacy groups, and some members of Congress, repeatedly has criticized OSHA's response to the COVID-19 crisis as being insufficient to ensure worker safety during the pandemic. To that end, on March 4 and 6, 2020, the union petitioned OSHA, demanding that the agency create an Emergency Temporary Standard (ETS) for infectious diseases to protect workers during the COVID-19 pandemic.
When OSHA did not respond to the petition, the AFL-CIO sent a blistering letter to Labor Secretary Eugene Scalia. When that letter spurred no action, on May 18, 2020, the AFL-CIO followed up by filing an emergency petition with the U.S. Court of Appeals for the D.C. Circuit, arguing that OSHA's failure to issue legally enforceable COVID-19-specific rules has imperiled workers, especially as the economy is reopening. The union argued that specific safety standards are necessary to protect workers and hold employers accountable, and requested that the court require OSHA to issue an ETS related to COVID-19.
To be fair, OSHA has already issued several industry-specific guidance documents and alerts describing measures that employers should take to protect workers, as well as an Enforcement Guidance on the subject of COVID-19. And, the day after the AFL-CIO filed its lawsuit, OSHA issued an Updated Enforcement Guidance and a new policy requiring employers to determine and record if a COVID-19 case is work-related. OSHA also asserts that existing regulations provide sufficient protection to workers and that additional regulations will tax the resources of the agency and employers. The court has expedited the schedule so that all briefing is due by June 2, 2020.
However, despite the pressure brought from several sources, OSHA has great discretion in deciding whether to issue regulations, and the AFL-CIO's lawsuit is likely to be an uphill battle.
While the formal standards requested in the AFL-CIO's Emergency Petition potentially would expose employers to a greater risk of OSHA citations, it is questionable whether in reality they would result in substantial workplace safety changes. Currently, employers must follow state executive order safety requirements, and it is only a foolish employer that ignores CDC and OSHA guidelines, increasing the potential for government action, liability, union and employee relations problems, and bad publicity.
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Originally published Foley & Lardner, May 2020
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