Appeals court rejects AFL-CIO lawsuit over lack of COVID-19 labor protections

A federal appeals court on Thursday rejected the AFL-CIO’s emergency lawsuit against the Trump administration for failing to enact stronger labor protections amid the coronavirus crisis.

A three-judge panel on the D.C. Circuit Court of Appeals issued a two-page order saying that the Department of Labor’s Occupational Safety and Health Administration (OSHA) has the authority to decide whether to issue new rules during the pandemic.

“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 [emergency temporary standard] is not necessary at this time,” the panel said in its order.

The labor group filed an emergency petition with the D.C. Circuit less than a month ago, accusing OSHA of ignoring calls for urgently needed labor rules to protect workers vulnerable to the coronavirus.

“COVID-19’s toll in mortality and morbidity among workers and the general public has exceeded the expectations of many prognosticators,” lawyers for the AFL-CIO wrote in their petition.

“Yet in a stunning act of agency nonfeasance in the midst of a workplace health emergency of a magnitude not seen in this country for over a century (if ever), OSHA has neither responded directly to, nor taken formal action on, either of the two pending ETS petitions, nor has it shown any inclination to adopt mandatory, legally-enforceable, COVID-19-specific rules to protect workers.”

But the lawsuit faced an uphill battle considering the amount of deference that the courts grant to federal agencies.

“We are very disappointed that three judges did not deem the lives of America’s workers worthy of holding an argument or issuing a full opinion,” AFL-CIO president Richard Trumka said in a statement responding to the decision.

“The U.S. Court of Appeals for the District of Columbia Circuit’s post-it length response to our petition acknowledges the ‘unprecedented nature of the COVID-19 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,” he added.

Loren Sweatt, the principal deputy assistant secretary for OSHA, and Solicitor of Labor Kate O’Scannlain applauded the decision.

“We are pleased with the decision from the D.C. Circuit, which agreed that OSHA reasonably determined that its existing statutory and regulatory tools are protecting America’s workers and that an emergency temporary standard is not necessary at this time,” they said in a statement. “OSHA will continue to enforce the law and offer guidance to employers and employees to keep America’s workplaces safe.”

The AFL-CIO and a coalition of labor unions had urged Labor Secretary Eugene Scalia in March to enact stronger rules for protecting workers and to require employers to report to the agency when their workers tested positive for the coronavirus.

Scalia responded in a letter saying that his agency had issued strong guidelines to protect workers and that the labor groups’ proposal would unnecessarily “burden employers and overwhelm OSHA with information.”

— Updated at 5:01 p.m.