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Law360 (July 28, 2020, 3:18 PM EDT) --
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| Peter Fox |
Some critics have pointed out that despite thousands of COVID-19-related complaints, the agency had — as of late last month — issued only one COVID-19-linked violation.[1] Others have expressed shock and indignation at OSHA's failure to promulgate an emergency temporary standard to mitigate the risk of coronavirus infection on the job.[2]
The authority to issue an emergency temporary standard seems tailor-made for circumstances like this pandemic, where, as Title 29 of the U.S. Code, Section 655 states, "employees are exposed to grave danger ... from new hazards" and a standard is "necessary to protect employees from such danger."[3] Many workers must be in disbelief that OSHA has refused to act.
The AFL-CIO, which unsuccessfully petitioned OSHA for an emergency temporary standard,[4] has gone so far as to seek a writ mandamus — an extraordinary remedy that would judicially compel the agency issue a standard.[5] A panel of the U.S. Court of Appeals for the District of Columbia Circuit denied the AFL-CIO's mandamus request,[6] but a petition for rehearing en banc remains pending.[7]
OSHA has indeed been falling down on the job. One need only review the agency's opposition in the mandamus proceedings to find a litany of excuses for inaction. It would seem from the briefing that nearly every other federal agency, branch and level of government is acting to protect workers from exposure to the coronavirus except OSHA.[8]
But workplace safety advocates should be careful what they wish for. When OSHA acts through standards, that means other regulators may not.
Its safety and health standards preempt those of state and local governments — displacing those standards, regardless of whether those requirements are more or less stringent, and preventing the promulgation of new ones. With an administration and agency as transparently committed to easing burdens on employers, even at the expense of worker health and safety, it may be that inaction by OSHA is better than weak action by OSHA that preempts more aggressive state and local efforts to protect workers.
Even before the coronavirus pandemic, OSHA had struggled during the Trump administration to fulfill its core mandate of protecting worker health and safety. Things got off to a poor start when the administration took months to nominate an assistant secretary to head the agency,[9] and then did virtually nothing to advance the nomination in the U.S. Senate.
After more than a year and half of waiting, the nominee, Scott Mugno, withdrew his name[10] and President Donald Trump has not bothered to nominate a replacement. Leaderless for the entirety of Trump's term, OSHA has usually moved in a deregulatory direction when it has managed to act.
Most of the agency's rulemaking efforts have been focused on preventing or delaying two Obama-era regulations — one concerning employer reporting requirements and one addressing exposure to toxic beryllium — from fully taking effect.[11] And enforcement of existing regulations and standards has plummeted.[12] Based on this track record, if OSHA were to promulgate a COVID-19 emergency temporary standard, there is little reason to believe the standard would be strong or well enforced.
Such standard would, however, preempt state and local efforts to tackle the problem. That is because through OSHA's enabling statute, the Occupational Safety and Health Act, Congress displaced state jurisdiction over health and safety issues for which an OSHA standard is in effect.[13]
A "standard" is a term of art, cabined by its definition in Section 3(8) of the OSH Act[14] and its unique rulemaking procedures and authority found in Section 6 of the act.[15] As its name implies, an emergency temporary standard — authority for which is provided in Section 6(c) of the OSH Act[16] — is most definitely a standard, and so entitled to full preemptive effect.
But in the absence of a COVID-19-specific OSHA standard, is there anything state and local governments can actually do? The answer is yes.
As just discussed, the OSH Act preempts state and local regulation of matters already covered by an existing OSHA standard; but it may come as a surprise to many lawyers that this is the extent of its preemption.
Unlike in some other areas of federal legislation, Congress expressly left undisturbed state jurisdiction over all other aspects of workplace safety, even those covered by the OSH Act's so-called general duty clause,[17] which, while enforceable by OSHA, is not a standard. Thus, while OSHA preemption is a type of field preemption, it is a limited, piecemeal field preemption, tied to specific standards rather than the overarching general field.
Moreover, under a different provision of the OSH Act, states are allowed to assume responsibility themselves for all regulation and enforcement of workplace safety if they have a state plan approved by OSHA.[18] Twenty-one states and Puerto Rico have received such approval over the years,[19] and these jurisdictions with state plans may regulate even in areas of existing OSHA standards, as long as their standards are at least as stringent as OSHA's.
For the remaining states, however, the question of regulatory authority comes down to whether an OSHA standard is in effect. And, as of now, there is no OSHA standard in effect covering COVID-19.
Indeed, the fact that OSHA has been working on an unfinished standard for airborne infectious diseases for over 10 years shows that the agency itself recognizes the gap.[20] This means that states that have existing laws aimed at general workplace safety can enforce them against employers that carelessly expose workers to the coronavirus.
It also means that state and local governments are free to fashion new COVID-19-specific standards, thereby stepping in where OSHA has failed to lead. Ironically, for states without a state plan thinking of adopting such measures, OSHA's legal battle to avoid promulgating a COVID-19 emergency temporary standard may be one they want to see the agency win.
Peter Fox is a partner at Scoolidge Peters Russotti & Fox LLP. He previously served as counselor to the solicitor at the U.S. Department of Labor under the Obama administration.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] See, e.g., Editorial, Why is OSHA AWOL?, N.Y. Times, June 21, 2020, https://www.nytimes.com/2020/06/21/opinion/coronavirus-osha-work-safety.html.
[2] See, e.g., Press Release, Nat'l Safety Council, NSC: OSHA Must Immediately Issue Emergency Temporary Standard to Protect Workers from COVID-19 (June 11, 2020), https://www.nsc.org/in-the-newsroom/nsc-osha-must-immediately-issue-emergency-temporary-standard-to-protect-workers-from-covid-19; ActionNetwork.org, Urge OSHA to issue an Emergency Temporary Standard for Infectious Diseases, https://actionnetwork.org/forms/covid-19-take-action (last visited July 12, 2020).
[3] 29 U.S.C. § 655(c)(1).
[4] OSHA Denies AFL-CIO Petition Calling for an Emergency Temporary Standard on Infectious Diseases, Safety + Health, June 4, 2020, https://www.safetyandhealthmagazine.com/articles/19945-osha-denies-afl-cio-petition-calling-for-an-emergency-standard-on-infectious-diseases.
[5] See Pet., In re AFL-CIO, 20-1158 (D.C. Cir. May 18, 2020).
[6] See In re AFL-CIO, 20-1158, 2020 WL 3125324 (D.C. Cir. June 11, 2020).
[7] See Pet. for Reh'g, In re AFL-CIO, 20-1158 (D.C. Cir. June 18, 2020).
[8] See Opp., In re AFL-CIO, 20-1158 (D.C. Cir. May 29, 2020).
[9] President Trump Nominates Scott Mugno to Head OSHA, Safety + Health, Nov. 1, 2017, https://www.safetyandhealthmagazine.com/articles/16333-president-trump-nominates-scott-mugno-to-head-osha.
[10] Ben Penn, Trump Labor Safety Nominee Withdraws on Cusp of Confirmation, Bloomberg Law, May 15, 2019, https://news.bloomberglaw.com/daily-labor-report/trump-labor-safety-nominee-withdraws-on-cusp-of-confirmation.
[11] See, e.g., Press Release, Nat'l Employment Law Project, Trump Administration Rolls Back Workplace Injury Reporting Rule (Jan. 25, 2019), https://www.nelp.org/news-releases/trump-administration-rolls-back-workplace-injury-reporting-rule/; Press Release, OSHA (Mar. 3, 2018), OSHA Will Enforce Beryllium Standard Starting in May, https://content.govdelivery.com/accounts/USDOL/bulletins/1df3824.
[12] See, e.g., Press Release, Nat'l Employment Law Project, OSHA Enforcement Activity Declines Under the Trump Administration (June 11, 2018), https://www.nelp.org/publication/osha-enforcement-activity-declines-trump-administration/; Press Release, Nat'l Employment Law Project, The Number of OSHA Inspectors Has Fallen to the Lowest Number in the 48 Year History of the Agency (Jan. 9, 2019) (linking to Update: OSHA, the Department of Labor and the Shut Down, Confined Space (2019), http://jordanbarab.com/confinedspace/2019/01/09/osha_staff_mugno/).
[13] See 29 U.S.C. § 667(a).
[14] See id. § 652(8).
[15] See id. § 655.
[16] Id. § 655(c).
[17] See id. § 654(a)(1).
[18] See id. § 667(b).
[19] OSHA.gov, State Plans, https://www.osha.gov/stateplans (last visited July 12, 2020).
[20] See Brian Mann, Trump Team Killed Rule Designed To Protect Health Workers From Pandemic Like COVID-19, Nat'l Public Radio, May 26, 2020, https://www.npr.org/2020/05/26/862018484/trump-team-killed-rule-designed-to-protect-health-workers-from-pandemic-like-cov.
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