UPDATE: U.S. Department of Labor Statement on D.C. Circuit Court Ruling
Solicitor of Labor Kate O’Scannlain and OSHA Principal Deputy Assistant Secretary Loren Sweatt issued the following statement regarding the D.C. Circuit Court ruling re: “American Federation of Labor and Congress of Industrial Organizations, No. 20-1158:”
“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. OSHA will continue to enforce the law and offer guidance to employers and employees to keep America’s workplaces safe.”
As businesses across the country send more workers back to traditional operations post-quarantine, they are doing so without a federal standard to protect their workers from COVID-19 exposure – even more problematic given 20 states are reporting surges in cases. In response, the National Safety Council (NSC) is calling on the Occupational Safety and Health Administration (OSHA) to immediately exercise its emergency authority and issue a temporary emergency standard to protect workers during the pandemic and reopening. In a new policy position statement, NSC states its intention to compel OSHA to act through legislative, administrative, judicial, and public means.
“Employers must know the specific measures they are required to take to protect their workers and the public,” said Lorraine M. Martin, president and CEO of NSC. “NSC has been an ardent, strong supporter of OSHA since the agency’s founding, and we have watched it take life-saving actions in the midst of other crisis situations. We expect it will do so again, especially knowing that safety is vital to not only workers’ health, but also to our economic recovery as a nation.”
In the absence of a regulation, OSHA has stated its authority to issue citations to workplaces through the general duty clause1 from the OSH Act. However, as of May 15, 2020, the agency has not issued any citations citing the general duty clause at workplaces.2 This is despite worker deaths from COVID-19 and virus transmission hotspots being reported throughout the country, particularly in the meatpacking industry and long-term care facilities.3,4
Issues that should be addressed within a federal standard include but are not limited to:
- Accessibility to hand-washing in accordance with the Centers for Disease Control and Prevention (CDC) recommendations
- Physical distancing requirements following CDC guidelines
- Facial coverings that may include personal protective equipment (PPE) or cloth facial coverings based on the work environment and risk assessment
- Utilization of the hierarchy of controls to include engineering and administrative controls and PPE use
- Workplace COVID-19 symptom screening protocols
- Workplace response plan development
NSC is issuing the call in the midst of National Safety Month, observed annually to help educate employers about the leading causes of preventable deaths and injuries.
1 The general duty clause states, “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are like to cause death or serious physical harm to his employees.” Section 5(a)(1) of the OSH Act.
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