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D.C. Circuit won’t force OSHA to adopt COVID-19 workplace safety rule

Daniel Wiessner  

Daniel Wiessner  

(Reuters) - The U.S. Court of Appeals for the D.C. Circuit on Thursday rejected the AFL-CIO’s bid to force the Occupational Safety and Health Administration (OSHA) to create an emergency workplace safety rule amid the coronavirus pandemic.

A three-judge D.C. Circuit panel in an unsigned order said OSHA’s decision to issue nonbinding, industry-specific guidance rather than an enforceable rule to protect workers from COVID-19 was entitled to considerable deference.
The panel also said that in light of the “unprecedented nature” of the pandemic, and the existing enforcement tools OSHA has at its disposal, it was reasonable for the agency to determine that a rule was unnecessary.
The AFL-CIO, which claimed in a May petition that OSHA was ignoring its legal responsibilities by not issuing a rule, did not immediately respond to a request for comment. Nor did the union’s lawyers at Bredhoff & Kaiser.
In a joint statement, Solicitor of Labor Kate O’Scannlain and acting OSHA director Loren Sweatt said they were pleased with the decision.
”OSHA will continue to enforce the law and offer guidance to employers and employees to keep America’s workplaces safe,” they said.
OSHA is authorized to issue emergency temporary safety rules to address hazards that pose a “grave danger” to workers. The AFL-CIO in its petition claimed that the COVID-19 pandemic clearly met that bar and OSHA had abdicated its duty to protect workers.
The petition came as many other unions, advocacy groups and Democrats in Congress levied criticism at the agency for declining to adopt binding rules and putting off inspections of many workplaces amid the pandemic.
In a filing last month, OSHA said its response to the pandemic represented the agency’s “most thorough and comprehensive response to a public health crisis ever.” OSHA said it had investigated more than 4,000 pandemic-related complaints, conducted more than 350 inspections and issued one citation.
OSHA also said a rule was not necessary because an employer’s failure to adequately protect workers would violate the “general duty” under federal law to provide a hazard-free workplace.
The agency was backed by amicus briefs from two coalitions of trade groups led by the U.S. Chamber of Commerce and the National Association of Home Builders. They said OSHA’s approach of offering guidance to individual industries reflected the unique needs of specific workplaces and was more helpful to employers than a uniform standard.
The D.C. Circuit panel included Circuit Judges Karen Henderson, Robert Wilkins and Neomi Rao.
The case is In re AFL-CIO, U.S. Court of Appeals for the D.C. Circuit, No. 20-1158.
For the AFL-CIO: Andrew Roth of Bredhoff & Kaiser, Craig Becker of AFL-CIO
For OSHA: Edmund Baird

To keep up-dated on the latest news and information regarding the COVID-19 pandemic, the economic impact, and the government’s response, at Thomson Reuters’ COVID-19 Resource Center, and you can follow or the Reuters App.

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