On May 18, 2020, the American Federation of Labor and Congress of Industrial Organizations (the AFL-CIO) filed a petition against the U.S. Occupational Safety and Health Administration (OSHA) demanding that the agency issue an emergency temporary standard (ETS) to address the COVID-19 pandemic within 30 days. The case is In re: Am. Fed’n of Labor and Cong. of Industrial Orgs., No. 19-1158 (D.C. Cir., May 18, 2020).
Prior complaints about a lack of enforceable standard
The AFL-CIO and other unions have previously petitioned OSHA to issue an ETS to prevent worker exposure to COVID-19. Although OSHA has issued both general and industry-specific guidance, none of this guidance is enforceable. In multiple enforcement memoranda, OSHA indicated it will exercise enforcement discretion, both related to workplace COVID-19 cases and more broadly with the understanding that “employers may face difficulties complying with OSHA standards due to the ongoing health emergency.”
Some U.S. senators and state attorneys general have also been pressuring OSHA to issue COVID-19 standards. In April, 35 U.S. senators sent a letter to Senate leaders calling for future COVID-19 response legislation to include a requirement for OSHA to issue an ETS to protect essential workers. On May 14, 2020, attorneys general from 20 states sent a letter to the Trump administration requesting enforceable standards to protect workers in the meatpacking and poultry industries from COVID-19.
Up to now, U.S. Labor Secretary Eugene Scalia has defended OSHA’s decision not to issue an ETS, noting that the agency may bring enforcement actions under the Occupational Safety and Health Act’s General Duty Clause.
In its petition, the AFL-CIO argues that tens of thousands of workers have been infected through exposure to co-workers, patients, customers, and members of the public who entered the workplace. The AFL-CIO contends that OSHA has authority to issue an ETS when (1) employees are exposed to “grave danger” and (2) when the ETS is “necessary” to protect them from such danger. Although the AFL-CIO acknowledges that OSHA has discretion over when to issue an ETS, the AFL-CIO states that the agency’s discretion is not unlimited.
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.
On May 29, 2020, OSHA filed its response to AFL-CIO’s petition. OSHA argued that the union has not clearly and indisputably demonstrated that an ETS is necessary, particularly in light of the deference due to OSHA’s determination to the contrary. The agency articulates a two-pronged strategy for keeping workers safe from COVID-19: 1) enforcement of existing rules and 2) development of rapid, flexible guidance. OSHA specifically points to existing rules—including those relating to respiratory protection, sanitation, and personal protective equipment—requiring employers to take precautions against COVID-19 in addition to the OSH Act’s General Duty Clause. OSHA contends that its comprehensive guidance strategy allows it to quickly update requirements and tailor the guidance to industry-specific needs as new information arises. As a result, OSHA concludes that “tailored guidance and enforcement of the general duty clause and existing standards, plus robust legal protections for complaints, is the best approach for protecting workers at this time.”
The AFL-CIO has until June 2 to reply.