- The U.S. Court of Appeals for the D.C. Circuit yesterday rejected the AFL-CIO’s lawsuit designed to force OSHA to create an emergency workplace safety rule focused on the coronavirus pandemic.
- A three-judge panel said in an unsigned order that OSHA has the authority to decide whether to issue new rules during the pandemic. Since the crisis began, the agency has offered nonbinding, industry-specific guidance rather than an enforceable rule to protect workers from COVID-19. In April and again in May, OSHA issued guidance for contractors for recording COVID-19 cases on the jobsite.
- The May 18 lawsuit asked that the agency instead be compelled to issue an emergency temporary standard (ETS), a move that OSHA reserves for situations when workers are in grave danger due to new hazards.
AFL-CIO president Richard Trumka expressed his disappointment with the ruling in a statement, saying that current OSHA guidelines don't require employers to take any measures to protect workers.
"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," it reads.
The AFL-CIO contended that an ETS is especially needed now as states are lifting stay-at-home orders and more businesses are open.
"As the economy reopens and more workers return to work, person-to-person contact in the workplace will increase and health experts predict that the already shocking number of infections and deaths among workers will get worse," it reads.
Construction industry association groups applauded the decision, saying it affirms that OSHA's response to the coronavirus outbreak eliminates the need for an emergency standard for infectious diseases covering all employees.
They noted that because government officials and other scientists are learning new information about COVID-19 and how best to mitigate related hazards on an almost daily basis, a "static, intransigent rule" is inappropriate.
"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," reads a joint statement from Associated Builders and Contractors Vice President of Health, Safety, Environment and Workforce Development Greg Sizemore and National Association of Home Builders CEO Jerry Howard.
Federal OSHA in-person checks of construction sites have fallen to about 16% of pre-coronavirus inspection levels while the agency focuses on virus hazards in the health-care industry, according to a Bloomberg Law analysis of agency data.
In the first week of March, OSHA federal inspectors conducted about 395 construction inspections. During the week of April 26, there were about 65 inspections.
OSHA in an April 13 memorandum said it was prioritizing inspections of workplaces where there’s a high potential of exposure to the coronavirus, such has hospitals and nursing homes. Construction sites weren’t among the high-hazard locations.