As children, we quickly learn the difference between “should” and “must”, particularly when it comes to homework, chores, and eating nutritious foods.  On May 18, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), the largest federation of unions in the United States, initiated legal proceedings seeking to compel the Occupational Safety and Health Administration (OSHA) to issue mandatory workplace standards, a must, rather than the current guidelines, a should.  

Since the beginning of the outbreak, the AFL-CIO and a number of other labor unions have petitioned OSHA to issue an emergency temporary standard under the Occupational Safety and Health Act (OSH Act) to protect workers from occupational exposure to COVID-19. The requests were largely based on section 655(c)(1) of the OSH Act, which provides that OSHA “shall provide . . . for an emergency temporary standard to take immediate effect upon publication in the Federal Register if [it] determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.” 

An emergency temporary standard would go into effect immediately and remain in place while under review to become a permanent standard. In its petition, the AFL-CIO described OSHA’s refusal to issue an emergency temporary standard addressing safety in the workplace during COVID-19 as “an abuse of agency discretion so blatant and of such magnitude as to amount to a clear abdication of statutory responsibility.”

While OSHA released Guidance on Preparing Workplaces for COVID-19, which advises employers to classify the exposure risk level of the various roles in the workplace in accordance with the guidance and take appropriate steps to protect workers with medium, high, and very high exposure risk jobs, the guidance is merely a recommendation, not a required standard. 

OSHA’s industry-specific guidance for construction employers and workers states that it does not create any new legal obligations, but instead creates recommendations and descriptions of mandatory safety and health standards. The recommendations, such as installing physical barriers to separate workers, providing cloth face coverings or other personal protective equipment to employees, and implementing alternating shifts, are advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful workplace. 

In a memo dated April 28, 2020, the U.S. Department of Labor stated that OSHA will enforce its guidance at its “discretion” and recommended that employers conduct their own worksite assessments to identify COVID-19 risks and implement prevention strategies. The petition also notes that OSHA’s personal protective equipment standard, which includes direction on masks and eye covers, leaves decisions to mandate usage and to supply them to workers up to employers.

Currently, employers are not required by statute, executive order or agency rules to adopt an infection control plan relating to the novel coronavirus or to implement controls to reduce hazards from airborne exposure to the virus. The ACL-CIO seeks to change this, demanding that OSHA issue mandatory protective measures tailored to the risk in individual workplaces, backed up by the threat of civil penalties if employers fail to implement the measures.

The ACL-CIO alleges that the COVID-19 global pandemic caused by the novel coronavirus has produced the type of workplace “catastrophe” that Congress intended an emergency temporary standard to address. The petition mentions that when Congress enacted the OSH Act, among its central conclusions was that employers cannot be relied on in all cases to take voluntary measures sufficient to protect the health and safety of their workforce.

Of particular concern to the construction industry, which in Texas and other states was designated as an “essential activity” not subject to shelter-at-home orders, the AFL-CIO alleges that a significant portion of 1.4 million Americans infected with the novel coronavirus are “essential” workers. The AFL-CIO claims that many of these workers were infected at work either because their work requires exposure to infected persons, e.g., nurses and corrections officers, or because their work requires repeated exposure to large numbers of coworkers and members of the general public, e.g., grocery store clerks. 

As most states have lifted the shelter-at-home orders, more workers are returning to work, increasing person-to-person contact in the workplace and potentially increasing the infection rate.  The AFL-CIO argues that OSHA’s evolving voluntary guidance to the employer community is not a “substitute for the immediate imposition of mandatory, legally enforceable, COVID-19-specific duties on employers to protect workers from this grave danger.”

On May 29, the Department of Labor filed its response to the AFL-CIO’s petition claiming OSHA should not be forced to take the “extreme” step of setting a mandatory, enforceable infectious disease standard for COVID-19. Additionally, the government’s response claims OSHA is already addressing COVID-19 in a rigorous and comprehensive manner and the standards which the AFL-CIO seeks are “largely already mandatory and enforceable either through existing OSHA requirements or the veritable gamut of non-OSHA public safety requirements enacted by federal, state and local officials in response to the pandemic.”

OSHA and the Department of Labor have already garnered support from businesses which would be affected by an emergency temporary standard. The U.S. Chamber of Commerce and other groups, including the National Association of Home Builders of the United States, Associated Builders and Contractors, American Road and Transportation Builders Association, Leading Builders Of America, Mason Contractors Association of America, American Subcontractors Association, Air Conditioning Contractors of America, and Independent Electrical Contractors, have filed amicus briefs in support of the government.

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