Court rejects Big Labor suit to force OSHA’s hand on Covid-19 standard

Sources: Associated Builders and Contractors, AFL-CIO, Washington, D.C.; CP staff

The U.S. Court of Appeals for the District of Columbia Circuit dismissed an AFL-CIO petition seeking an order compelling the Occupational Safety and Health Administration to issue an emergency temporary standard (ETS) for infectious disease and Covid-19 workplace exposure. “The agency is authorized to issue an ETS if it determines that ’employees are exposed to grave danger’ from a new hazard in the workplace, and an ETS is ‘necessary’ to protect them from that danger,” a three-judge panel concludes. “The OSHA’s decision not to issue an ETS is entitled to considerable deference.”

“The decision affirms that OSHA’s comprehensive response to the outbreak currently eliminates the need for an emergency temporary standard,” note Associated Builders and Contractors Vice President of Health, Safety, Environment and Workforce Development Greg Sizemore and National Association of Home Builders Chief Executive Officer Jerry Howard in joint statement. “The government is learning new information about Covid-19 and how best to mitigate related hazards on an almost daily and sometimes even hourly basis, which is why a static, intransigent rule would not be an appropriate response. OSHA’s resources are better deployed by developing timely and situational-specific guidance documents, which can be adjusted and adapted as the agency and public health authorities better understand the pandemic.

“Even without a Covid-19 outbreak, safety and health is always our Number 1 priority. As representatives of residential, nonresidential and industrial construction contractors across the country, we remain committed to collaborating with state and local health officials, as well as across market sectors, to diligently identify and implement new health and safety protocols on our jobsites.”

ABC, NAHB, American Road and Transportation Builders Association, Mason Contractors Association of America and the U.S. Chamber of Commerce urged the court not to grant the AFL-CIO request in a late-May brief. Workers are better protected from the virus by construction industry best practices rather than a rigid “one-size-fits-all” regulation, the groups argued, adding: “Guidance on how to maintain the spread of Covid-19 in the aviation industry would naturally be quite different from guidance directed at the banking industry, or the construction industry.”

“The Post-it length response to our petition acknowledges the ‘unprecedented nature of the Covid-19 pandemic’ but repeats the false claim by Big Business that the Occupational Safety and Health Administration already has done what is needed to protect workers,” AFL-CIO President Richard Trumpka contends in a statement on the Appellate Court decision. “In fact, none of the other ‘regulatory tools,’ short of an emergency temporary standard, require employers to do anything at all. An unprecedented pandemic calls for unprecedented action, and the court’s action fell woefully short of fulfilling its duty to ensure that the Occupational Safety and Health Act is enforced.”

AFL-CIO filed a writ of mandamus petition in May after initially petitioning OSHA in early March to issue an emergency temporary standard addressing the Covid-19 outbreak. 


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