Former Department of Labor (DOL) officials are urging a federal appeals court to reverse a district judge’s ruling limiting the circumstances where worker can sue OSHA for failing to take action on an “imminent danger,” saying the decision wrongly interprets the statute and could lead to “irremediable intra-Departmental conflicts.”
The U.S. Court of Appeals for the District of Columbia Circuit is convening a three-judge “merits” panel to consider unions’ lawsuit seeking an order that would force OSHA to reinstate its COVID-19 emergency temporary standard (ETS) for healthcare workers and quickly release a permanent rule, in a potential sign that the court is taking the case seriously.
A new federal circuit court ruling appears to set a more demanding standard for OSHA to show that an employer could “reasonably foresee” worker misconduct, in a decision that aims to clarify a “confusing patchwork” of precedent on where the burden of proof lies in cases dealing with the adequacy of an employer’s safety program.
Workers at a Pennsylvania meat-packing plant are asking a federal appeals court to take up their potentially precedent-setting suit against OSHA over its failure to cite their employer for what they say were inadequate COVID-19 protections, arguing that the case remains relevant over a year after they first brought the claims.
Labor groups suing to reinstate OSHA’s COVID-19 emergency temporary standard (ETS) for the healthcare sector are claiming that the agency offered “no cognizable rationale” for allowing the rule to expire, ignored a key procedural step in that process, and bucked its own precedents when it dropped the ETS without a permanent standard to replace it.
OSHA is withdrawing its COVID-19 vaccine emergency temporary standard (ETS) in light of the Supreme Court order blocking its implementation, but says it will continue developing a permanent standard using the emergency rule as a proposal, just days after it told a federal court it is prioritizing a long-term COVID-19 rule for healthcare workers.
OSHA says it is renewing work on a permanent COVID-19 standard for the healthcare sector in light of the Supreme Court ruling that blocked its economy-wide vaccination rule, but warns that a final rule is still “six to nine months” away in a new legal filing opposing unions’ bid for a court order seeking a permanent standard within 30 days.
Attorneys say the Supreme Court’s stay of OSHA’s COVID-19 vaccine standard both forces the agency to use the general duty clause as its primary tool to enforce pandemic safety measures, and creates new hurdles for those efforts -- though it could also open the door to a separate rule based on the emergency temporary standard (ETS) for healthcare workers.
Observers say the Supreme Court decision blocking OSHA’s COVID-19 emergency temporary standard (ETS) could chill the future development of safety standards and ease challenges to its rulemakings, especially if the agency attempts to craft "holistic" policies for new dangers.
The Supreme Court’s Jan. 13 order blocking enforcement of the OSHA emergency temporary standard for COVID-19 vaccination is drawing strident responses from all political corners.