June 12, 2020
The D.C. Circuit has denied the AFL-CIO’s petition seeking to force the Occupational Safety and Health Administration to issue an “emergency temporary standard” addressing the COVID-19 pandemic. The labor union sought an OSHA rule that would have required employers to take certain steps to ensure the safety of their workplaces, or else be fined.
Court cites deference to the agency: The D.C. Circuit said it owed “considerable deference” to OSHA in making workplace safety determinations. “In light of the unprecedented nature of the COVID-19 pandemic…OSHA reasonably determined that an [emergency temporary standard] is not necessary at this time,” the three-judge panel stated in its brief decision. To date, OSHA has elected to issue nonbinding recommendations and guidance for employers regarding workplace safety during the pandemic, in lieu of more prescriptive and binding rulemaking.
Meanwhile, the Equal Employment Opportunity Commission continues to update its guidance for employers. The Commission released a new batch of guidance Q&As on Thursday, covering topics related to age and disability discrimination, among others. The Commission reiterated—consistent with its stance throughout the pandemic—that employers may not bar older workers from the workplace simply because they are at a higher risk for serious cases of COVID-19, and noted that any flexibilities—such as telework or modified schedules—offered by employers in light of the pandemic must be done so in a nondiscriminatory fashion (i.e., offered to all employees equally). The full updated guidance can be found here.
Outlook: The D.C. Circuit decision allows for continued flexibility for both OSHA and employers to take the necessary steps to ensure the safety of American workplaces. Employers should continue to closely monitor and follow the latest guidance from OSHA, CDC, the EEOC, and other federal health and safety and labor and employment agencies.