APPEALS COURT AFFIRMS OSHA'S DECISION TO NOT ISSUE COVID-19 EMERGENCY TEMPORARY STANDARD
June 12, 2020
On Thursday, June 11, 2020, the D.C. Circuit Court of Appeals rejected a request by the American Federation of Labor and Congress of Industrial Organizations (“AFL-CIO”) to force the Occupational Safety and Health Administration (“OSHA”) to issue an “Emergency Temporary Standard” (“ETS”) in response to workplace safety concerns arising from the novel Coronavirus and COVID-19.
In March, the AFL-CIO had filed a petition with OSHA requesting an ETS in response to the health and safety concerns surrounding workers’ exposure to COVID-19. OSHA investigated the request and determined that it was not necessary to issue an ETS. Under the controlling statute, 29 U.S.C. § 655(c), OSHA has broad authority to determine what threats to worker safety meet the criteria for issuing an ETS. The Court deferred to OSHA’s judgement in refusing to force the agency to issue a standard with regard to COVID-19. In doing so, the Court focused on statutory language that required promulgation of an ETS in response to “grave danger” from “new hazards.” The Court agreed with OSHA that the protections and guidance already in place for infectious disease were sufficient, given the rapidly-developing nature of the pandemic.
It is worth noting that not all federal health and safety laws contain identical language and that the requirements for other agencies with other jurisdictions could be different. If you have questions as to the regulatory requirements impacting your business because of the Coronavirus pandemic, Jackson Kelly PLLC Workplace Safety and Health and Labor and Employment law groups are tracking these changes to provide clients with the most complete and accurate information.