Law360 (May 18, 2020, 6:48 PM EDT) -- The AFL-CIO urged the D.C. Circuit on Monday to make the U.S. Department of Labor issue a rule requiring employers to protect workers from COVID-19, building on demands for heightened workplace safety standards with a new lawsuit.
The agency has shirked its duty to protect workers under the Occupational Safety and Health Act by issuing nonbinding safety recommendations for employers rather than making them implement specific safety measures or face fines, the labor federation said in a petition to the D.C. Circuit. The AFL-CIO wants an expedited order giving the DOL's Occupational Safety and Health Administration 30 days to issue an emergency rule.
"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 [emergency temporary standard, or] ETS constitutes an abuse of agency discretion so blatant and of 'such magnitude' as to amount to a clear 'abdication of statutory responsibility,'" the AFL-CIO said, citing circuit precedent.
As the pandemic rages, a chorus of workers' advocates have called on OSHA to issue an ETS making employers protect their employees from the virus. While the federal workplace safety watchdog generally takes years to set new safety standards, it can act immediately under the OSH Act to protect workers from "grave danger" when an emergency standard is "necessary" to do so.
The AFL-CIO and others have formally petitioned OSHA to issue an emergency rule, citing "potential for a catastrophic toll in mortality and morbidity" and concerns that employers won't protect workers without a mandate. But the agency has instead issued nonbinding guidance and urged employers to follow Centers for Disease Control and Prevention workplace safety recommendations. The agency has also pledged to cite negligent employers under existing safety rules and the OSH Act's so-called general duty clause, which makes them provide workplaces "free from recognized hazards."
The agency has abused its discretion by refusing to issue an emergency rule, the AFL-CIO argued Monday. It cited language in the OSH Act's emergency rule provisions saying the labor secretary "shall" act when necessary, arguing the pandemic presents such a need.
"There is no question that the novel coronavirus poses a 'grave danger' to workers" under the emergency rule provisions, the federation said. As of May 16, more than 1.4 million COVID-19 cases have been reported to the CDC. Tens of thousands of health care, meatpacking and other workers have gotten sick, and hundreds have died, the labor federation said.
An emergency rule is "necessary" to protect workers because OSHA's existing rules don't go far enough, the federation added. For example, a sanitation standard Labor Secretary Eugene Scalia cited in an April 30 letter rejecting AFL-CIO President Richard Trumka's demand for an emergency rule makes employers provide clean toilets, but does not make them disinfect surfaces or provide hand sanitizer, the federation said. And it's harder for the agency to prove an employer violated the general duty clause than it would be to enforce a rule specific to COVID-19, the AFL-CIO said.
The case isn't an easy one, AFL-CIO general counsel Craig Becker conceded in a call with Law360 Monday. The D.C. Circuit is generally hesitant to second-guess agencies' decisions not to issue rules, he said. But the court has also recognized that some circumstances may require OSHA to act.
"The court has said this is a mandatory duty," Becker said. "[The OSH Act] doesn't say 'OSHA may issue,' it says 'OSHA shall issue.'"
David Super, an administrative law professor with the Georgetown University Law Center, also said the AFL-CIO has a case.
He compared the AFL-CIO's suit to one Massachusetts and other states filed against the Environmental Protection Agency under former President George W. Bush seeking a rule on carbon emissions under the Clean Air Act. In that case, the U.S. Supreme Court rejected the administration's argument that it had discretion not to enact standards, ordering the EPA to consider petitions for a rule.
The Clean Air Act language the Supreme Court cited is similar to the operative language in the OSH Act, Super said.
"If OSHA can present a convincing argument that it has considered this problem and found that COVID-19 poses no substantial new health and safety threats to workers, the court might well defer," Super wrote in an email. "All the scientific evidence I have seen says otherwise, however, so I doubt OSHA could make that case."
A DOL spokesperson said the agency is "confident it will prevail in this counterproductive lawsuit."
"The Department is committed to protecting American workers during the pandemic, and OSHA has been working around the clock to that end," the spokesperson said.
The AFL-CIO is represented in-house by Craig Becker, and by Andrew Roth of Bredhoff & Kaiser PLLC and Randy Rabinowitz of the OSH Law Project LLC.
The DOL is represented in-house by Kate S. O'Scannlain and Edmund Baird.
The case is In re: AFL-CIO, case number 20-1158, before the U.S. Court of Appeals for the D.C. Circuit.
--Additional reporting by Kevin Stawicki. Editing by Alanna Weissman.
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