Court Rejects Call for OSHA Emergency Standard

TUESDAY, JUNE 16, 2020

Last week, the U.S. Court of Appeals for the D.C. Circuit rejected a lawsuit filed in May by the American Federation of Labor and Congress of Industrial Organizations against the Occupational Safety and Health Administration.

The lawsuit aimed to force OSHA to create an emergency safety rule in light of the COVID-19 pandemic.

OSHA, on the other hand, contended that the systems and guidelines in place were enough to protect workers and an emergency safety rule was unwarranted.

What Happened

The AFL-CIO filed the lawsuit on May 18, asking that the agency issue an emergency temporary standard, which is supposed to be reserved for when workers are in grave danger due to new hazards.

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

“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. If the Trump administration refuses to act, we must compel them to.”

On June 11, a three-judge panel found that OSHA has the authority to decide whether to issue new rules during a pandemic.

“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, see 29U.S.C. § 654(a), the OSHA reasonably determined that an ETS is not necessary at this time,” the order reads.

In response to the ruling, the AFL-CIO was critical of the judges while OSHA and other industry groups praised the decision.

“More than 2 million of America’s working people are infected, and more than 110,000 have died,” Trumka said in the latest statement. “An unprecedented pandemic calls for unprecedented action, and the court’s action today fell woefully short of fulfilling its duty to ensure that the Occupational Safety and Health Act is enforced.”

Solicitor of Labor Kate O'Scannlain and Principal Deputy Assistant Secretary for OSHA Loren Sweatt issued a statement that read: “We are pleased with the decision from the D.C. Circuit, which 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. OSHA will continue to enforce the law and offer guidance to employers and employees to keep America's workplaces safe."

Moreover, Associated Builders and Contractors Vice President of Health, Safety, Environment and Workforce Development Greg Sizemore and National Association of Home Builders Chief Executive Officer Jerry Howard issued a joint statement reacting to the ruling as well stating that construction sector safety is their No. 1 priority.

“We applaud the D.C. Circuit’s decision, which affirms that OSHA’s comprehensive response to the COVID-19 outbreak currently eliminates the need for an emergency temporary standard for infectious diseases and COVID-19 covering all employees,” the statement read.

“The government is learning new information about COVID-19 and how best to mitigate related hazards on an almost daily and sometimes even hourly basis, which is why a static, intransigent rule would not be an appropriate response. OSHA’s resources are better deployed by developing timely and situational-specific guidance documents, which can be adjusted and adapted as the agency and public health authorities better understand the pandemic.”


OSHA began releasing guidelines on COVID-19 in March. Most recently, OSHA issued an alert at the end of May detailing steps for social distancing in the workplace.

The social distancing measures, which were released in English and Spanish for employers to use in the workplace, include:

  • Isolate any worker who begins to exhibit symptoms until they can either go home or leave to seek medical care;
  • Establish flexible worksites (e.g., telecommuting) and flexible work hours (e.g., staggered shifts), if feasible;
  • Stagger breaks and re-arrange seating in common break areas to maintain physical distance between workers;
  • In workplaces where customers are present, mark six-foot distances with floor tape in areas where lines form, use drive-through windows or curbside pickup and limit the number of customers allowed at one time;
  • Move or reposition workstations to create more distance, and install plexiglass partitions; and
  • Encourage workers to bring any safety and health concerns to the employer’s attention.

The social distancing alert was just the latest in a stream of announcements from OSHA in dealing with the pandemic, including documents on respirator guidance, protecting workers in high-risk industries, enforcing safety and other direction for employers.

OSHA issued two revised enforcement policies a few weeks prior, including increasing in-person inspections and revising its policy for recording cases of the coronavirus.

In terms of the inspections, the new enforcement guidance “reflects changing circumstances in which many non-critical businesses have begun to reopen in areas of lower community spread.”

  • In areas where the community spread of COVID-19 has decreased, OSHA will return to the inspection planning policy that it had relied on prior to the health crisis. However, it will continue to prioritize COVID-19 cases, utilize whatever type of communication is necessary and ensure everyone takes appropriate precautions.
  • In areas experiencing sustained community transmission or a resurgence, OSHA will continue prioritizing COVID-19 fatalities and imminent danger exposures for inspection, will conduct on-site inspections where resources are sufficient and OSHA will develop a program to conduct monitoring inspections.

The second revised guideline emphasizes that employers must make all reasonable efforts to ascertain where a case of coronavirus is work-related when dealing with recordkeeping.

Employers must record cases of the coronavirus if it:

  • Is confirmed as a coronavirus illness;
  • Is work-related as defined by 29 CFR 1904.5; and
  • Involves one or more of the general recording criteria in 29 CFR 1904.7, such as medical treatment beyond first aid or days away from work.

OSHA reiterates, though, that “recording a coronavirus illness does not mean that the employer has violated any OSHA standard. Following existing regulations, employers with 10 or fewer employees and certain employers in low hazard industries have no recording obligations; they need only report work-related coronavirus illnesses that result in a fatality or an employee's in-patient hospitalization, amputation or loss of an eye.”

View all of PaintSquare Daily News' coverage on COVID-19, here.


Tagged categories: AFL-CIO; COVID-19; Good Technical Practice; Labor; Laws and litigation; Lawsuits; NA; North America; OSHA; OSHA

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