DC Circ. Tosses AFL-CIO Suit Seeking Virus Safety Rule

By Braden Campbell
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Law360 (June 11, 2020, 12:37 PM EDT) -- The D.C. Circuit on Thursday tossed an AFL-CIO lawsuit that sought to make the U.S. Department of Labor's workplace safety arm issue an emergency rule requiring employers to protect workers from COVID-19.

The AFL-CIO on Thursday lost its bid to force OSHA to issue an emergency rule requiring employers to protect workers from COVID-19. (Photo by Bill Clark/CQ Roll Call via Getty Images)

A three-judge panel denied the labor federation's petition for a writ of mandamus making the Occupational Safety and Health Administration issue an "emergency temporary standard" covering the virus, citing the "considerable deference" the court owes the agency.

"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," the panel said in a brief order.

AFL-CIO President Richard Trumka slammed the court's "post-it length" response to the federation's petition Thursday.

"We are very disappointed that three judges did not deem the lives of America's workers worthy of holding an argument or issuing a full opinion," Trumka said in a statement. An AFL-CIO representative added the federation is "seriously considering" petitioning for the same panel or the full D.C. Circuit to rehear the dispute. 

The AFL-CIO sued OSHA last month over its refusal to issue a rule making employers take specific steps to protect workers during the COVID-19 pandemic or face fines. The agency typically takes months or years to issue enforceable rules, though the Occupational Safety and Health Act allows it to quickly issue temporary standards when "necessary" to protect workers from "grave dangers."

Labor unions, workers' advocacy groups and Democratic lawmakers have urged the agency to issue an ETS for months. Instead, the agency has issued a series of nonbinding recommendations to employers and pledged to issue citations under existing rules that mandate general protections but don't specifically address COVID-19 or other respiratory illnesses. The agency has fielded thousands of complaints during the pandemic, but had only issued one citation as of late last month, Loren Sweatt, OSHA principal deputy assistant secretary, said at a Congressional hearing.

The AFL-CIO called OSHA's strategy "an abuse of agency discretion so blatant and of 'such magnitude' as to amount to a clear 'abdication of statutory responsibility,'" in its May 18 petition. By dispensing advice rather than demanding protections, the agency puts millions of workers at risk, the AFL-CIO argued.

The DOL defended its stance in a May 29 brief, saying the pandemic has not met the "steep threshold" for an ETS in part because the agency's existing rules require "typical precautions," such as social distancing, the use of personal protective equipment, and quarantining people with symptoms. Several business associations, including the U.S. Chamber of Commerce and the National Federation of Independent Business, backed the DOL in two amicus briefs.

DOL officials praised the decision Thursday.

"We are pleased with the decision from the D.C. Circuit," Sweatt and Solicitor of Labor Kate O'Scannlain said in a joint statement. "OSHA will continue to enforce the law and offer guidance to employers and employees to keep America's workplaces safe."

Restaurant Law Center head Angelo Amador, whose group was a party to one of the amicus briefs, said the agency's approach already provides "the necessary framework and, most importantly, detailed information to help employers protect the health and safety of workers." The center is the legal advocacy affiliate of the National Restaurant Association

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, Timothy Taylor, Marisa Schnaith, Amy Tryon 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.

--Editing by Marygrace Murphy.

Update: This story has been updated with additional information.

For a reprint of this article, please contact reprints@law360.com.

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