AFL-CIO sues OSHA in effort to force emergency standard

Washington — The AFL-CIO has filed a lawsuit against OSHA and the Department of Labor, asking a federal court to require OSHA to issue an emergency temporary standard on infectious disease amid the evolving COVID-19 pandemic.

The labor federation, which filed a petition May 18 in the U.S. Court of Appeals for the District of Columbia Circuit, alleges that “the COVID-19 global pandemic caused by the novel coronavirus has produced exactly the type of workplace catastrophe that Congress intended an emergency temporary standard to address.” It also contends that a “significant portion” of workers infected or dying from COVID-19 are classified as “essential” workers, who face workplace hazards because of exposure to colleagues, patients and customers who may be sick or haven’t been screened for the respiratory illness before entering various workplaces.

“It’s truly a sad day in America when working people must sue the organization tasked with protecting our health and safety,” AFL-CIO President Richard Trumka said in a press release. “But we’ve been left no choice. Millions are infected and nearly 90,000 have died, so it’s beyond urgent that action is taken to protect workers who risk [their] lives daily to respond to this public health emergency. If the Trump administration refuses to act, we must compel them to.”

During an April 23 DOL briefing call, Secretary of Labor Eugene Scalia supported OSHA’s decision to use existing rules – including its General Duty Clause – to protect workers in lieu of issuing an emergency standard.

“The department is committed to protecting American workers during the pandemic, and OSHA has been working around the clock to that end,” a DOL spokesperson told Safety+Health on May 18. “The department is confident it will prevail in this counterproductive lawsuit.”

The AFL-CIO requests that OSHA be mandated to issue a standard within 30 days, should the court grant the petition.

The AFL-CIO previously called for an emergency temporary standard on infectious disease in an April 21 press release, as well as in an April 28 letter sent to Scalia, in which it said DOL and OSHA were “missing in action.”

On April 30, Scalia wrote a letter in response, saying employers are already taking steps that a temporary standard would require, including implementing risk assessments, training, sanitation and use of personal protective equipment. He added that OSHA guidance “allows flexibility and responsiveness” to changes compared with a standard.

“OSHA will not use guidelines as a substitute for enforcement – rather, the agency has the tools and intent to pursue both avenues; that is our two-pronged approach,” Scalia wrote.