The AFL-CIO sued to require the Occupational Safety and Health Administration (OSHA) to issue an emergency temporary standard (ETS) to protect workers from the novel coronavirus.
Why it Matters
To date, OSHA has refused calls from lawmakers and Union leaders to issue a temporary emergency standard in response to the Covid-19 pandemic.
If successful, all U.S. workplaces subject to OSHA rules will be required to develop workplace safety plans to safeguard workers against the risk of airborne disease transmission. The petition, filed on May 18, 2020, is available here, American Federation of Labor and Congress of Industrial Organizations.
Details about the Filing
The Union’s emergency petition explains that COVID-19 has caused more deaths among workers in a shorter time than any other health emergency OSHA has faced in its fifty-year existence. Many more deaths are likely as the economy reopens. These infections are from exposure to ill co-workers, patients, customers, and members of the public not screened before entering a workplace or were otherwise asymptomatic upon entering.
In a sharply worded petition, the AFL-CIO argues the agency’s unwillingness to issue an emergency standard is a blatant abuse of discretion. Specifically:
… 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.’
OSHA says employers already have a general duty to maintain safe workplace
Both Labor organizations and Democratic lawmakers have called for OSHA to issue emergency temporary standards for infectious diseases; Democratic lawmakers failed to add language to previous coronavirus-response legislation to require OSHA to issue an emergency temporary standard covering employees whose jobs have a high degree of potential exposure.
But Labor Secretary Eugene Scalia has refused. He believes OSHA can handle the issue through enforcement actions under the Occupational Safety and Health Act’s “general duty” clause. This clause requires employers to maintain a hazard-free workplace.
With the lack of legislation, OSHA has not made it any easier for employers to minimize Covid-19 risks in the workplace. Thus, employees and customers are not necessarily safer as the economy reopens. Sure, OSHA released various directives and guides (about 15) for employers and workers to consider in response to the Covid-19 pandemic. And those guides are good practices to generally follow. But these are not rules, they are not mandatory, and many are highly discretionary for the employer.
Further, the New York Times previously reported OSHA would not inspect workplaces aside from those in high-risk activities like health care. Additionally, from a practical stand-point, OSHA probably does not have the resources to respond to current and prospective complaints. For example, the Washington Post reported over 3,000 worker complaints regarding the coronavirus were filed with OSHA from January through early April.
A “one-size-fits-all standard” is not likely to make sense for making a safe workplace in response to Covid-19. But neither does relying on employers to come up with their own ways of trying to mitigate Covid-19 risks, especially where inspections and enforcement are lacking.
So while the President calls for an immediate reopening of the economy, that call should be accompanied by governmental agencies like OSHA stepping up with an emergency coronavirus legal standard. A standard specific to the pandemic – and not general working conditions – could help protect workers and customers from coronavirus risks.
Coronavirus Legal Consultation
If you’re concerned about the safety of your business or the safety of your workplace in relation to these COVID-19 safety protocols use this link to begin your consultation.
Michigan attorney Jason Shinn has represented employers and employees in OSHA/MIOSHA and employment legal issues since 2001.