A federal appeals court on Thursday denied a petition from the AFL-CIO seeking a court order to force the Occupational Safety and Health Administration to issue an emergency temporary standard on infection control in the workplace.
“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 …the OSHA reasonably determined that an ETS is not necessary at this time,” a three-judge panel wrote in a unanimous decision.
While the most recent coronavirus relief bill passed by the House also would require OSHA to issue an emergency temporary standard, Republican control of the Senate suggests that organized labor may have little leverage to force the Labor Department to issue more than the sector-by-sector guidance that has been its standard on workplace safety.
“The OSHA’s decision not to issue an ETS is entitled to considerable deference,” the court wrote in a brief order.
The Labor Department’s chief lawyer, Solicitor Kate O’Scannlain, and OSHA head Loren Sweatt issued a statement welcoming the decision.
“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,” the Labor Department officials said.
“OSHA will continue to enforce the law and offer guidance to employers and employees to keep America’s workplaces safe,” they added.
AFL-CIO President Richard Trumka criticized the court for declining to hold oral arguments or issue a full opinion on the federation’s petition for mandamus, an extraordinary request for the court to order an executive branch action.
“The U.S. Court of Appeals for the District of Columbia Circuit’s post-it length response to our petition acknowledges the ‘unprecedented nature of the COVID-19 pandemic’ but repeats the false claim by Big Business that the Occupational Safety and Health Administration already has done what is needed to protect workers,” Trumka said in a statement.
“In fact, none of the other ‘regulatory tools,’ short of an ETS, require employers to do anything at all,” he said. “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.”