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Workplace infection rule could backfire, Labor Department says

Department and AFL-CIO face off in court

The AFL-CIO cites data on health care workers who have been stricken with or succumbed to COVID-19 in the labor group's push to get an emergency standard for workers.
The AFL-CIO cites data on health care workers who have been stricken with or succumbed to COVID-19 in the labor group's push to get an emergency standard for workers. (Tom Williams/CQ Roll Call)

Forcing the Labor Department to adopt an emergency temporary standard to protect workers against COVID-19 infections could result in an “ineffective or counterproductive” regulation that would be difficult to modify if necessary, the department said in court documents. 

And ordering the Occupational Safety and Health Administration to issue such a standard not only would trespass on agency discretion, it also would involve the courts in an active controversy subject to negotiations between the executive branch and Congress, department lawyers said in the documents filed Friday.

“Rather, the virus is a problem of extraordinary magnitude and complexity, and one that implicates good-faith but contested political, economic, and scientific premises; it should remain with ‘the political branches’ to decide whether to issue an ETS [emergency temporary standard],” agency lawyers said in asking the Circuit Court of Appeals for the District of Columbia to reject a complaint from the AFL-CIO.

The court ordered the AFL-CIO to file its reply to the Labor Department response on Tuesday, after which the court will decide whether to schedule oral arguments.

The AFL-CIO, in a complaint filed May 18, pleaded for speedy consideration because of the “grave danger” COVID-19 poses to workers. “Grave danger” is the key trigger for Labor Department action under 1970 law.

The law says that OSHA “shall provide” for an emergency temporary standard if it determines that employees are exposed to “grave danger” from exposure to toxic substances or from new hazards, and that such an emergency standard is necessary to protect employees from such danger.

The AFL-CIO cited 43,738 COVID-19 infections among health care workers with 191 deaths, 4,913 meat processing workers sickened with 20 fatalities, and a separate Centers for Disease Control and Prevention report on correctional facilities disclosing 2,778 infections and 15 deaths among staff.

OSHA “cannot possibly deny” that COVID-19 poses a “grave danger” to workers, the AFL-CIO lawyers argued, adding that’s why Congress gave the agency authority to issue an emergency standard.

“Against this background, any suggestion by OSHA that it has carte blanche to withhold issuance of an ETS no matter how necessary and urgent regulatory action may be to protect workers against grave danger to their lives and health must be rejected,” the AFL-CIO lawyers said.

But the agency defended its refusal to act on union requests for an emergency standard, in part because drafting an across the board rule to cover the risks in so many different types of workplaces would force the agency to issue a very general rule that would be of limited usefulness, the Labor Department said.

“A broad and rushed standard promulgated by OSHA is not the only means of protecting AFL-CIO’s workers from COVID-19,” department lawyers said. “As described above, and as OSHA has concluded, 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 labor group said general standards cited by department officials were insufficient, maintaining that they are not designed specifically to protect against transmission of COVID-19 or any airborne infectious disease, nor do they require employers to conduct a hazard assessment to identify workplace sources of potential exposure to the virus.

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