Labor Group Loses Bid for Virus Safety Protections

A postal worker wears a mask and gloves as he sorts mail at the U.S. Postal Service processing and distribution center in Oakland, Calif., on April 30, 2020. (AP Photo/Ben Margot)

WASHINGTON (CN) — The D.C. Circuit on Thursday rejected a lawsuit from the AFL-CIO claiming the Trump administration is not doing enough to protect workers during the Covid-19 pandemic.

A three-judge panel said in an unsigned, two-page order that the Occupational Safety and Health Administration acted reasonably in determining that an emergency temporary standard is unnecessary during the outbreak of the novel coronavirus, which has so far has killed over 113,000 Americans, according to a Johns Hopkins University tracker.

“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, the OSHA reasonably determined that an ETS is not necessary at this time,” the order states.

Emergency temporary standards are set if OSHA determines that “workers are in grave danger, due to exposure to toxic substances” or agents, according to the agency’s website.

The AFL-CIO, American’s largest federation of labor unions, filed a mandamus petition last month asking the court to provide an expedited ruling regarding OSHA’s refusal to create emergency standards and alleging the agency abused its discretion.

The labor group argued there was an urgency is implementing new standards amid the pandemic, pointing to workers deemed essential by the federal government, such as those in the health care field, grocery store workers and meat packing employees.

Temporary standards during the coronavirus crisis could include social distancing requirements, supplying appropriate amounts of personal protective equipment and access to testing. While OSHA recommends employers adopt some new standards, they are not required to, according to the petition.  

The 70-page petition also addressed arguments made by Labor Secretary Eugene Scalia in a letter to the AFL-CIO on April 30 defending OSHA’s voluntary guidance and making clear that no emergency temporary standards would be issued.

“First and foremost, the five general standards cited by the Secretary were not designed specifically to protect against workplace transmission of the novel coronavirus or any airborne infectious disease,” the petition states. “As a result, they do not require employers to conduct a worksite hazard assessment to identify sources of potential exposure to or contact with the virus. Nor do they require employers to adopt a number of specific measures – in particular, social distancing and post-contact isolation – most likely to prevent such transmission.”

The general standards referenced in the petition only recommend workers use cloth face mask coverings and include no requirements for disinfecting surfaces, providing access to hand sanitizer or other sanitary needs, according to the AFL-CIO.  

“We are not asking the court to compel OSHA to adopt a one-size-fits-all regulatory response to the workplace threats posed by the novel coronavirus,” the petition states. “Right now, however, no employer is required to adopt an infection control plan after assessing the level of risks its employees face from the novel coronavirus or to implement controls to reduce hazards from airborne exposure.”

The union federation asked Secretary Scalia in April to take action, saying the Labor Department failed to meet its “obligation and duty to protect workers.” Scalia accused the group of misleading employers of their duties and workers of their rights in his response letter.

In a statement Thursday, AFL-CIO President Richard Trumka said he was disappointed that the D.C. Circuit “did not deem the lives of America’s workers worthy of holding an argument or issuing a full opinion.”

Trumka said the three-judge panel’s “post-it length response” acknowledge the severity of the 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.”

“In fact, none of the other ‘regulatory tools,’ short of an ETS, require employers to do anything at all,” he said. “More than 2 million of America’s working people are infected and more than 110,000 have died. 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.”

The D.C. Circuit panel was comprised of U.S. Circuit Judges Karen Henderson, Robert Wilkins and Neomi Rao. Henderson was appointed by George H. W. Bush, Wilkins was appointed by Barack Obama and Rao is an appointee of President Donald Trump.

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