On June 11, 2020, in the matter of In re: AFL-CIO, No. 19-1158 (D.C. Cir. June 11, 2020), the U.S. Court of Appeals for the D.C. Circuit upheld OSHA’s March 6, 2020 decision not to issue an emergency temporary standard (“ETS”) to “protect working people from occupational exposure to infectious disease, including COVID-19.” The Court considered the unprecedented nature of the COVID-19 pandemic, as well as “regulatory tools . . . OSHA has at its disposal to ensure employers are maintaining hazard-free work environments.” Ultimately, the Court agreed with OSHA in its determination that an ETS is not necessary at this time.
OSHA is authorized to issue an ETS if it determines that “employees are exposed to grave danger” from a new hazard in the workplace, and that the emergency standard is “necessary” to protect them from that danger. 29 U.S.C. § 655(c). The General Duty Clause of the OSH Act already requires employers to maintain a hazard-free workplace. OSHA has rarely authorized an ETS, and during the COVID-19 pandemic has instead rolled out guidance for employers and workers in various industries over the past few months.
Following the Court’s decision on June 11, 2020, OSHA released a statement the same day, supporting the Court’s decision and reaffirming that it believes its “existing statutory and regulatory tools are protecting America’s workers.” While OSHA may not be issuing mandatory directives right now, mounting employee complaints to employers, administrative agencies, and in courtrooms, may eventually lead to stricter workplace safety enforcement based on the General Duty clause and enforcement of industry-specific standards.