AFL-CIO Emergency Petetion for Writ of Mandamus: U.S. Court of Appeals for the D.C. Circuit Addresses Request for OSHA COVID-19 Emergency Temporary Standard

Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.

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The United States Court of Appeals for the D.C. Circuit (“D.C. Circuit”) June 11th Order addressed a petition submitted by the American Federation of Labor and Congress of Industrial Organizations (“AFL-CIO”) related to COVID-19. See No. 20-1158.

The AFL-CIO submitted an emergency petition for a writ of mandamus ("Emergency Petition") for an Occupational Safety and Health Administration (“OSHA”) emergency temporary standard (“ETS”).

The Emergency Petition is construed by the D.C. Court as a petition for review of OSHA's denial of a March 6, 2020, administrative petition for an ETS related to COVID-19. The AFL-CIO challenged OSHA’s decision not to issue:

. . . an ETS to protect working people from occupational exposure to infectious disease including COVID-19.

The D.C. Circuit indicates that 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
  • An ETS is necessary to protect them from that danger

OSHA’s decision not to issue an ETS is noted to be entitled to “considerable deference.”

The D.C. Circuit concludes:

. . . 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.

A copy of the Order can be downloaded here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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