Litigation

A new federal appellate court ruling is building on a prior denial of labor unions’ suit that sought an OSHA emergency temporary standard (ETS) for COVID-19, rejecting a similar case that applied to the mining industry specifically and further underscoring the importance of lawmakers’ negotiations on an imminent stimulus bill.

The U.S. Court of Appeals for the 5th Circuit in a new decision is rejecting OSHA’s broad reading of the universe of facilities subject to its safety standards for commercial diving, holding that the agency cannot apply the rule to aquarium divers because they fall under an exemption for “scientific” workers.

OSHA is finalizing its rule to “clarify” key elements of the 2017 general-industry exposure standards for beryllium including a new definition of “work areas” that won support from unions as a way to ease compliance with the standards and thus bolster worker protections, even as litigation over the underlying policy continues.

Labor unions say the Department of Agriculture’s (USDA) rule allowing swine slaughterhouses to raise line-speed limits regardless of worker safety impacts must be vacated, citing a recent Supreme Court decision they say shows that the agency’s refusal to consider safety data in the rulemaking is too fundamental a flaw to fix on remand.

Amazon.com employees say a federal district court can hear their suit seeking COVID-19 employee safeguards at a New York warehouse despite OSHA’s general authority over workplace safety, arguing that the agency’s “minimal steps” to address the pandemic give courts more room to act.

Amazon.com is asking a federal district court to reject a suit over its handling of the COVID-19 pandemic as an infringement on OSHA’s “primary jurisdiction” over workplace safety issues, arguing that allowing lawsuits to enforce state-level coronavirus policies would create “an inconsistent patchwork” of contradictory judicial orders.

The Department of Agriculture (USDA) is fighting labor unions’ argument that an Inspector General critique of USDA worker safety data undermines its contested rule allowing some slaughterhouses to increase line speeds, countering that the “preliminary” data has “no bearing on the validity of the Final Rule.”

The Department of Agriculture (USDA) is seeking remand from a federal district court to reconsider its rule allowing higher line speeds at some swine slaughterhouses after a judge faulted its consideration of worker safety risks, but labor groups challenging the policy oppose the reconsideration and say it would be a sham.

Employment lawyers expect an “explosion” of lawsuits over workplace exposures to COVID-19 in the coming months and are warning employers to closely follow guidance from OSHA, the Centers for Disease Control and Prevention (CDC) and other agencies to either avoid such complaints or provide solid defenses against them.

The AFL-CIO is asking the full U.S. Court of Appeals for the District of Columbia Circuit to review a three-judge panel’s decision rejecting its bid to force OSHA to craft an emergency temporary standard (ETS) for the COVID-19 pandemic, saying the panel judges “wholly failed to consider” several issues in their two-page ruling.