The D.C. Circuit Court of Appeals denied a recent petition to make the Occupational Safety and Health Administration (OSHA) require that employers protect employees from COVID-19.
OSHA has issued numerous pieces of guidance and direction for employers and employees marching on through the COVID-19 pandemic. OSHA may also act when “necessary” to protect employees from “grave danger” by issuing an emergency temporary standard (ETS). On March 6, the American Federation of Labor and Congress of Industrial Organizations’ (AFL-CIO) petitioned OSHA for an ETS to make employers protect employees from the virus. The Department of Labor denied the request, so the AFL-CIO filed its petition in the D.C. Circuit.
The AFL-CIO argued OSHA was leaving employees unprotected by issuing nonbinding safety recommendations for employers rather than taking a more aggressive route of issuing an ETS. An ETS would make employers implement specific safety measures or face fines. According to the AFL-CIO, OSHA abused its discretion by failing to issue an ETS.
In an order issued Thursday, June 11, the D.C. Circuit denied the petition. The three-judge panel explained that although OSHA may issue an ETS if it determines that “employees are exposed to grave danger” from a new hazard in the workplace and an ETS is “necessary” to protect them from that danger, the agency’s decision not to issue an ETS is entitled to “considerable deference.” The panel reasoned that given the unprecedented nature of the COVID-19 pandemic and the existing regulatory tools available to OSHA, the agency reasonably determined that an ETS was not needed.
The decision is an obvious win for employers. Rather than adding yet another regulation for employers to spend time and resources learning about and complying with while trying to navigate the gradual reopening of the U.S. economy, it allows OSHA to continue enforcing the law and providing guidance to employers and employees through existing regulatory tools.
Please contact Nicholas F. Morisani or any other member of Phelps’ Labor and Employment team if you have questions or need compliance advice and guidance. For more information related to COVID-19, see Phelps’ COVID-19: Client Resource Portal.