AFL-CIO Asks Full DC Circ. To Revisit Virus Safety Rule Suit

By Mike LaSusa
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Law360 (June 18, 2020, 10:57 PM EDT) -- The AFL-CIO asked the full D.C. Circuit on Thursday to revisit a panel decision last week that tossed the group's suit aiming to force the U.S. Department of Labor's workplace safety arm to issue an emergency rule requiring employers to protect workers from COVID-19.

The AFL-CIO urged the full court to take another look at the panel's ruling, pointing out that the U.S. economy is beginning to reopen while the virus continues to spread, putting workers in "mortal danger."

The panel "misstated" the Occupational Safety and Health Administration's reason for refusing to issue an emergency temporary standard covering the novel coronavirus, and "wholly failed to address the AFL-CIO's argument that OSHA's actual rationale is flatly inconsistent with the OSH Act," the labor group said.

"Given the exceptional importance of the question of whether OSHA's refusal to issue an ETS was lawful and the mortal danger faced by workers now being required to return to work as the economy reopens, en banc review is warranted to address the AFL-CIO's heretofore unaddressed argument that OSHA's refusal was plainly unlawful and puts countless workers' lives in immediate jeopardy," the group said.

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.

A three-judge panel denied the labor federation's petition last week, 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.

The AFL-CIO told Law360 Thursday that it's optimistic about its chances in court.

"We believe OSHA has a statutory duty to impose a reasonable health and safety standard on all employers so that they have a clear understanding of the steps they must take to protect their employees against this deadly virus and they also understand that if they do not take those reasonable steps they face sanctions," the group said. "As the death toll continues to mount in healthcare, meat packing, corrections, transit and other workplaces, the court must compel OSHA to perform its critical statutory duty immediately."

The government did not respond Thursday to a request for comment.

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, in the U.S. Court of Appeals for the D.C. Circuit.

--Additional reporting by Braden Campbell. Editing by Breda Lund.

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