Workplace Safety Standards Amidst COVID-19

The Occupational Safety and Health Administration (OSHA) has issued standards and guidelines for employers to address workplace safety and health concerns relating to the COVID-19 pandemic. Section 5 of the Occupational Safety and Health Act (29 U.S.C. §654) mandates that employers provide employees with a safe and healthful work environment that is free from recognized hazards. This is sometimes referred to as the general duty clause. COVID-19-related workplace safety precautions fall within this general duty of employers. In light of the logistical constraints and health challenges, the agency has authorized a discretionary good faith standard for compliance. So long as an employer has demonstrated a good faith effort in complying with the issued standards and implementing alternatives where necessary, an OSHA agent may consider such actions in determining whether to issue a citation. With this approach, OSHA seeks to protect employers by rewarding good faith attempts to comply with the guidelines and directives.

Some workers and labor groups are discouraged by this leniency and concerned for workers’ health and safety as Americans begin to go back to work. The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) sued OSHA in an attempt to compel the agency to issue an emergency temporary standard (ETS) for infectious disease in response to COVID-19. Under certain conditions, OSHA is authorized to set ETS that take effect immediately and remain in place until a permanent standard is adopted (see 29 U.S.C. § 655(c) (2020)). The AFL-CIO was urging OSHA to adopt a legally-enforceable mechanism to require employers to develop workplace safety plans for airborne transmission. The AFL-CIO suggested that the current OSHA guidelines do not legally require employers to take action.

Today, the D.C. Circuit Court ruled on the matter (In re American Federation of Labor and Congress of Industrial Organizations, No. 19-1158) and denied the AFL-CIO’s calls for a safety plan requirement. The court reasoned, “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.” OSHA defended their approach by highlighting the legal enforceability of the general duty clause and arguing that COVID-19 concerns fall under this general umbrella. In a news release issued on June 11, 2020, Deputy Assistant Secretary Loren Sweatt said that OSHA’s “existing statutory and regulatory tools are protecting America’s workers.” Even though there are concerns about the safety and health of workers, OSHA is not ready to implement new regulations. As of now, the standards and directives issued by OSHA remain the foremost legal guidance for employers. For more information on current OSHA guidance regarding COVID-19 workplace safety visit https://www.osha.gov/SLTC/covid-19/standards.html.