WASHINGTON—One day after the number of confirmed COVID-19 cases in the U.S. passed 2 million, the nation’s second most powerful court denied the AFL-CIO’s petition to force the Occupational Safety and Health Administration to issue emergency safety rules to protect workers from being exposed to the virus.
In a one-paragraph ruling issued June 11, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit noted that OSHA is authorized to issue an “emergency temporary standard” if “employees are exposed to grave danger from a new hazard in the workplace”—but it held that “in light of the unprecedented nature of the COVID-19 pandemic,” OSHA’s general “regulatory tools” were enough, and the agency “reasonably determined that an ETS is not necessary at this time.”
“We are very disappointed that three judges did not deem the lives of America’s workers worthy of holding an argument or issuing a full opinion,” AFL-CIO President Richard Trumka responded in a statement, calling the ruling a “post-it length response to our petition.”
“None of the other ‘regulatory tools,’ short of an ETS, require employers to do anything at all,” he added. “The court’s action today fell woefully short of fulfilling its duty to ensure that the Occupational Safety and Health Act is enforced.”
AFL-CIO General Counsel Craig Becker told LaborPress that the federation was “seriously considering” petitioning to have the case reheard by the full court.
The Labor Department issued a statement by two officials saying they were pleased with the decision “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.”
The AFL-CIO filed the petition May 18 after Secretary of Labor Eugene Scalia refused to issue the emergency standards. The federation and National Nurses United had both asked the department to do that in early March. The petition sought to have the court force OSHA to issue the regulations within 30 days.
“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,” it argued.
“In the face of a global health emergency causing more deaths in less time than any other workplace crisis OSHA has faced in its 50-year existence,” it added, the agency’s failure to issue enforceable emergency regulations specific to the “new hazard” or to respond to the AFL-CIO and NNU’s petitions amounted to “a stunning act of agency nonfeasance.”
In a seven-page letter sent to Secretary Scalia Apr. 28, Trumka charged that the Department of Labor, OSHA, and the Mine Safety and Health Administration were “missing in action” and “failing to use their authority to enforce existing standards and the job safety laws.”
For example, he noted that OSHA’s Apr. 26 guidelines for the meat and poultry processing industry were entirely voluntary, and that the agency had “suspended the requirement for employers to identify and record work-related COVID-19 infections for most essential workers” unless their employers had objective evidence they had gotten infected on the job. OSHA, he added, was only doing inspections related to complaints about the virus in health-care workplaces—and had not cited any nursing-home employers for violating standards for personal protective equipment or sanitation.
“It sends the message to employers that they are not required to take strong preventive actions to protect workers from COVID-19,” he wrote.
“The Administration’s critics undermine worker safety,” Scalia responded Apr. 30. He wrote that employers were already taking steps to deal with the epidemic, that failure to implement such measures could be penalized as a violation of their general duty to keep workplaces safe, and voluntary guidelines allowed more “flexibility and responsiveness” than rules. Because coronavirus is not “caused by work tasks themselves,” he added, requiring employers to report all infections would “burden employers and overwhelm OSHA” with information about ailments that were “not work-related.”
OSHA’s general-duty standards, the AFL-CIO claimed in its brief to the court, “have proven to be toothless.” They were not designed “specifically to protect against workplace transmission of the novel coronavirus or any airborne infectious disease”; they do not require employers to identify sources of potential exposure to the virus; and they do not require social distancing or that employers provide personal protective equipment and disinfect surfaces.
According to OSHA’s database, the federation added, more than 85% of the 181 inspections of health-care workplaces conducted between March 1 and May 13 were initiated only after a worker died, not as a preventive action.
The Labor Department’s brief countered that the courts have never ordered OSHA to issue emergency standards, that the general-duty standards were strong enough, and that setting specific emergency rules would be “counterproductive to OSHA’s COVID-19 related efforts.”
“Our internal estimates have confirmed 225 of our members have tragically died and over 29,000 have been sick or been exposed,” United Food and Commercial Workers International President Marc Perrone told a House Oversight and Government Reform Committee hearing June 10. “Some responsible employers, like Cargill and Safeway, have done what is right. Others, including Amazon, Walmart, and even union employers like Kroger, have decided to put profits over people. The brutal reality is that far too many companies are failing to protect workers.”