Court backs Trump administration on virus safety at work
No emergency rule needed requiring employers to protect staff
By Matthew Daly
WASHINGTON — The Trump administration does not have to issue an emergency rule requiring employers to protect workers from the coronavirus, a federal appeals court ruled Thursday.
The unanimous ruling by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit declared that the Labor Department’s workplace safety arm “reasonably determined” that an emergency rule “is not necessary at this time.”
A top labour union sued the Occupational Health and Safety Administration last month seeking to compel it to issue an emergency temporary standard on the coronavirus.
The AFL-CIO said in filing the suit that tens of thousands of workers have been infected on the job through exposure to infected patients, co-workers and unscreened members of the public. As the economy reopens and people return to work, person-to-person contact will increase and an already “shocking number of infections and deaths among workers will rise,” the union said.
In its two-page ruling, the appeals court said OSHA is authorized to issue an emergency temporary standard, or ETS, if it determines that “employees are exposed to grave danger” from a new hazard in the workplace, and that an emergency rule is needed to protect them from that danger.
The decision not to issue an ETS “is entitled to considerable deference,” the court said.
“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, OSHA reasonably determined that an ETS is not necessary at this time,” the ruling said.
The ruling was signed by Judges Karen LeCraft Henderson, Robert Wilkins and Neomi Rao. Henderson and Rao were appointed by Republican presidents and Wilkins by a Democrat.
The Labor Department said in a statement Thursday that officials were pleased at the ruling, which backed its contention that existing rules and regulations are protecting America’s workers and that an emergency temporary standard is not needed.
“OSHA will continue to enforce the law and offer guidance to employers and employees to keep America’s workplaces safe,” said the statement, issued by Loren Sweatt, a top Labor Department official who oversees OSHA, and Kate O’Scannlain, the department’s top lawyer.
OSHA’s performance came under fire at a House hearing last month, in which Democrats accused the agency of being “largely invisible” during the pandemic.
Instead of an emergency standard, OSHA has relied on voluntary guidance that recommends companies erect physical barriers, enforce social distancing and install more hand-sanitizing stations, among other steps. But the guidance is not mandatory, and COVID-19 cases have spiked at meatpacking plants, prisons, nursing homes and other workplaces deemed essential during the pandemic.
AFL-CIO President Richard Trumka said he was disappointed that three federal judges “did not deem the lives of America’s workers worthy of holding an argument or issuing a full opinion.”
The “post-it length response” to the union’s lawsuit acknowledges the “unprecedented” nature of the coronavirus 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,” Trumka said in a statement.
More than 2 million Americans have been infected, and more than 110,000 have died, according a count compiled by Johns Hopkins University. Thousands of those people were infected in the workplace.
“An unprecedented pandemic calls for unprecedented action, and the court’s action today fell woefully short of fulfilling its duty to ensure that the Occupational Safety and Health Act is enforced,” Trumka said.
Sweatt said at the House hearing that existing standards require employers to conduct hazard assessments, ensure sanitation and cleanliness and provide personal protective equipment.
The agency has issued at least nine workplace guidance notices since March 9, including a joint statement with the federal Centers for Disease Control and Prevention intended to protect workers in meatpacking and processing industries. Guidance for construction workers was issued last month.
Rep. Bobby Scott, D-Va., chairman of the House Education and Labor Committee, said the ruling reinforces the need for the Senate to approve a House-passed bill that includes a provision requiring OSHA to issue an emergency temporary standard that would “protect workers, their families and their communities as the economy begins to reopen.”