DC Circ. Won't Revive Suit Seeking DOL Virus Safety Rule

By Lauren Berg
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Law360 (July 29, 2020, 5:44 PM EDT) -- The D.C. Circuit on Tuesday rejected the AFL-CIO's request for a rehearing en banc after a panel last month 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 full court denied the petition for rehearing en banc after the AFL-CIO urged the court last month 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 true 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 full appellate court disagreed Tuesday, saying in its one-sentence order that no member of the court requested a vote.

The AFL-CIO sued OSHA in May over its refusal to issue a rule that would make 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 emergency temporary standard 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 has only issued one citation as of May, 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 Labor Department defended its stance in a May 29 brief, saying the pandemic had 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 on June 11, 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.

Craig Becker, general counsel for the AFL-CIO, told Law360 on Wednesday that the union was disappointed by the full court's decision, calling the matter an issue of unprecedented public importance.

"This was not only a matter of life and death, but of whether the court would allow Congress' command that OSHA issue an emergency temporary standard when existing standards are not sufficient to address a grave danger to become a dead letter," Becker said. "That a matter of unprecedented public importance was disposed of in an unsigned paragraph by the panel and a single sentence denying rehearing by the full court represents an abdication of responsibility by the court on par with that of OSHA."

A spokesperson for the DOL told Law360 that the department was pleased with the court's decision.

"OSHA will continue to enforce the law and offer guidance to employers and employees to keep America's workplaces safe," the department said.

Chief Judge Sri Srinivasan and Circuit Judges Karen LeCraft Henderson, Judith W. Rogers, David S. Tatel, Merrick B. Garland, Thomas B. Griffith, Patricia A. Millett, Cornelia T.L. Pillard, Robert L. Wilkins and Neomi Rao sat on the panel that reached Tuesday's decision.

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 Department of Labor 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 Mike LaSusa and Braden Campbell. Editing by Peter Rozovsky.

Update: This story has been updated to include a comment from the U.S. Department of Labor.

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

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