The AFL-CIO is defending its suit aiming to force OSHA to craft an emergency temporary standard (ETS) for protecting workers from COVID-19 infection, arguing that the agency’s preferred strategy that combines non-binding guidance with pre-existing authorities like the general duty clause “stands the OSH Act on its head."
November 15, 2026
The U.S. Court of Appeals for the District of Columbia Circuit has rejected a suit challenging OSHA’s past decisions that extended existing safety standards to new industry sectors without formal rulemaking, issuing a ruling that upholds the agency’s worker eye-washing requirements for construction sites.
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OSHA and industry groups are urging federal appellate judges to reject the AFL-CIO’s suit seeking a short deadline for the agency to issue an emergency temporary standard (ETS) protecting workers from COVID-19, arguing that existing rules already provide enforceable standards for employers to prevent workplace infections.
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OSHA’s newly issued alert outlining steps employers can take to encourage social distancing in the workplace, including maintaining space between workers and isolating sick employees, could preview the agency’s forthcoming guidance for how businesses can safely reopen under loosened state pandemic orders.
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Lawmakers at a May 28 House hearing on the Trump administration’s coronavirus response sparred over whether OSHA needs to craft an emergency temporary standard (ETS) for protecting workers from infections, previewing arguments that could arise in labor unions’ pending lawsuit to force issuance of an ETS.
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Industry attorneys are predicting that employers will face major difficulties implementing OSHA’s new guidance on when their employees’ COVID-19 infections qualify as work-related and thus subject to reporting requirements, with one law firm calling the policy a “disappointing” shift from the agency’s prior stance.
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Former Obama OSHA chief David Michaels says that with little chance of OSHA issuing binding rules on how to protect workers from COVID-19, employers should develop safeguards collaboratively with their workers to ensure full participation in those measures.
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Appellate judges at recent oral argument in a closely watched case over the scope of OSHA’s process safety management (PSM) standard gave little indication of how they plan to rule, as members of the three-judge panel all appeared to wrestle with several aspects of the highly complicated case.
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OSHA is vowing to increase in-person inspections as states move to loosen restrictions on business operations due to the COVID-19 pandemic, replacing its interim guidance on investigating claims of workplace violations related to the disease with a plan to ramp up its enforcement actions as local conditions allow.
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The AFL-CIO is seeking a court order for OSHA to swiftly craft an emergency temporary standard (ETS) for protecting workers from COVID-19 infections, arguing that the agency’s decision to rely on non-binding guidance and existing rules rather than crafting a new coronavirus policy is an “abdication of statutory responsibility.”
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