Labor & Employment Law Daily AFL-CIO sues to force an emergency COVID standard
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Wednesday, May 20, 2020

AFL-CIO sues to force an emergency COVID standard

By Lisa Milam, J.D.

The labor federation has asked the D.C. Circuit for a writ of mandamus compelling OSHA to issue an emergency temporary standard on infectious diseases within 30 days.

Hoping to compel the Occupational Safety and Health Administration (OSHA) to issue an enforceable standard to keep employees safe from the spread of COVID-19, the AFL-CIO sued the agency on May 18, asking the D.C. Circuit Court of Appeals to step in as the nation’s workplaces begin to reopen as stay-at-home orders are lifted.

ETS sought. In a petition for a writ of mandamus filed Monday morning, the labor federation asks the appeals court to require OSHA to issue a formal emergency temporary standard (ETS) for Infectious Diseases within 30 days. According to the AFL-CIO, “OSHA has unlawfully withheld an ETS and should be compelled to issue one.”

Under Section 6(c ) of the OSH Act, the agency “shall provide . . . for an emergency temporary standard to take immediate effect upon publication in the Federal Register if [it] determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger,” the petition notes. “The COVID-19 global pandemic caused by the novel coronavirus has produced exactly the type of workplace catastrophe that Congress intended an emergency temporary standard to address.”

Millions infected. Thousands of essential workers who have stayed on the job throughout the COVID-induced quarantine already have contracted COVID-19, the AFL-CIO noted, and those numbers are expected to rise as more workers come back from quarantine. “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,” said AFL-CIO President Richard Trumka in a press statement announcing the lawsuit.

“We submit that in the face of a global health emergency causing more deaths in less time than any other workplace crisis OSHA has faced in its fifty-year existence, OSHA’s refusal to issue an ETS constitutes an abuse of agency discretion so blatant and of “such magnitude” as to amount to a clear “abdication of statutory responsibility,” the petition states. “OSHA has a duty to issue an ETS when it finds there is a grave danger to working people and that a standard is necessary to protect them. It is clear that now is the time for the agency tasked with protecting workers to do its job,” the AFL-CIO contends.

No undue hardship. The 12-million-member AFL-CIO and several affiliated unions have long petitioned OSHA to adopt a general infectious disease standard—going back as early as 2009 in the wake of SARS and other threatened pandemics. OSHA initiated rulemaking procedures but never issued a standard, and the Trump administration abandoned the process. The AFL-CIO, together with 23 national unions, petitioned OSHA to issue an ETS on March 6, and National Nurses United did so on March 4, according to the federation. To date, OSHA has taken no action on the petitions. Ordering the agency to do so within 30 days presents no undue hardship, the AFL-CIO reasons, given that OSHA had been considering an infectious disease standard for more than a decade, and has already received public comment, and drafted a proposed standard.

Guidances. The DOL has issued industry-targeted guidances to help minimize coronavirus-related hazards in specific types of workplaces—retail, restaurants, and meatpacking and processing facilities, to name a few—but these non-enforceable recommendations are expressly advisory in nature, and thus, essentially toothless. OSHA has yet to issue mandatory rules in response to the unprecedented public health crisis.

(The agency has, however, issued an interim guidance announcing that it would back off enforcing recordkeeping requirements with respect to COVID-19 cases, at least for most employers, until further notice. It also adopted an interim enforcement response plan giving discretion to the agency’s field offices to prioritize and address COVID-19 related workplace hazards, and has drastically reduced on-site inspections. That directive was followed up with another interim guidance emphasizing deference to employer good-faith efforts to comply with safety and health measures during the pandemic, and advising the OSHA inspectors how to evaluate whether an employer has endeavored to comply in good faith.)

These half-measures have sparked criticism. In an April 8 letter, Senate HELP Committee Democrats pressed Labor Secretary Eugene Scalia to use OSHA’s emergency enforcement mechanism to issue an ETS that would provide employers with “a consistent roadmap of standards” to follow and, eventually, a permanent standard, in the event a similar public health crisis arises in the future.Weeks later, more lawmakers piled on: 29 senators sent a letter charging the DOL with failing to protect the nation’s workers and calling for OSHA to immediately issue an ETS, along with additional interpretations of existing standards to increase enforceable protections. They also asked Scalia to notify employers of the agency’s intent to enforce key portions of existing guidance under OSHA’s general duty clause—before reopening the economy—and to withdraw the interim guidance allowing employers to skirt COVID-19 recordkeeping obligations, and backing off on-site inspections.

Trumka has previously criticized OSHA as well, charging the agency with being “missing in action” in an April 28 letter to Scalia and, in a separate press release, urging immediate action to protect workers from exposure. But Scalia responded swiftly. In an April 30 reply to Trumka, he mapped out the agency’s flexible approach and ensured critics that “in fact, the cop is on the beat.” Scalia pointed to existing OSHA standards, contending that OSHA’s general duty clause, combined with PPE, respiratory protection, and other standards already in place are mandate enough to meet the COVID-19 hazard. No additional mandates are needed, Scalia insisted, particularly given the novelty of the virus, the lack of “scientific certainty” around it, and the fact that circumstances are changing day to day. “Guidelines allow flexibility and responsiveness to that change, in a way a rule would not,” Scalia said.

The AFL-CIO disagrees. “Simply put,” its petition contends, “the five general standards and the general duty clause are insufficient to address the grave hazard and protect workers to the greatest extent possible as required by the OSH Act.”

“It’s truly a sad day in America when working people must sue the organization tasked with protecting our health and safety,” said Trumka. “But we’ve been left no choice. If the Trump administration refuses to act, we must compel them to.”

The AFL-CIO has asked for expedited briefing and disposition, proposing that OSHA be given 10 days to respond to its petition.

Urgent need. The need for an ETS is urgent, the petition states, “because many states and localities have already begun the process of allowing businesses within their jurisdictions to reopen while others are coming under enormous pressure to do so—a reopening process that will expose millions more workers to grave danger to their life and health if OSHA fails to issue an ETS.”

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