After a three-judge panel of the US Court of Appeals for the DC Circuit rejected an AFL-CIO request for an order requiring an emergency OSHA COVID-19 regulation, the union has petitioned for re-hearing by the entire Court. The rehearing request is pending.

In May, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) and a coalition of 22 labor organizations brought suit against OSHA before the DC Circuit. In a petition for a writ of mandamus, the union asked the Court to order OSHA to issue an emergency temporary standard (ETS) to protect workers from workplace exposure to infectious diseases, including COVID-19. Prior to the Court’s decision, the agency had come under increased scrutiny from members of Congress and stakeholders who alleged that it had not provided uniform standards to businesses to protect the workplace.

D.C. Circuit rejects initial petition, deferring to OSHA’s expertise and existing tools

Upon receiving the petition, the Court ordered an expedited briefing schedule without oral argument. A three-judge panel issued a brief order stating that OSHA is authorized to issue an ETS if it determines that “employees are exposed to grave danger in the workplace” and that “an ETS is necessary to protect them from the grave danger.” But, the Court noted that “OSHA’s decision is entitled to considerable discretion.” Given OSHA’s discretionary authority, the Court found that “OSHA reasonably determined that an ETS is not necessary at this time” due to the “unprecedented nature of the COVID-19 pandemic” and the “tools OSHA has at its disposal” to ensure that employees are protected in the workplace.

Following the Court’s order, Assistant Secretary of Labor Loren Sweatt and Solicitor of Labor Kate O’Scannlain issued a joint statement expressing satisfaction that the Court agreed that OSHA had the tools it needed to address COVID-19 and that an “ETS wasn’t necessary at this time.” AFL-CIO President Trumka criticized the Court’s decision, stating that the “unprecedented nature of the COVID-19 pandemic calls for unprecedented action.” The AFL-CIO argues that only an ETS could require employers to provide necessary protections.

Prior to the lawsuit, the AFL-CIO had petitioned OSHA directly to issue such a standard. On May 29, 2020, in an eleven-page letter from Assistant Secretary Sweatt, OSHA denied the union’s petition. It maintained that OSHA’s existing standards, industry specific guidelines regarding COVID-19, state and local government orders, and private industry guidance sufficiently address COVID-19 concerns. Secretary of Labor Scalia also flatly rejected the need for an ETS, noting that OSHA guidelines allow for the “flexibility and responsiveness” needed and that OSHA can still pursue enforcement actions under its existing authority.

Since the D.C. Circuit’s three-judge panel denied the petition, on June 18th the AFL-CIO filed a petition for re-hearing, asking all members of the Court to convene en banc to consider the case. The union argues that re-hearing, which is rarely granted, is appropriate because of the exceptional importance of the issue.

Tracey Oakes O’Brien is a co-author of this article.