Litigation

Legal firms are warning California employers that they could be targeted with tort litigation by workers who claim they contracted COVID-19 as a result of a company’s failure to properly carry out Cal/OSHA safety rules for the virus -- a potentially much greater financial risk for firms than an increase in worker compensation claims.

Congressional Democrats are backing a federal lawsuit by Amazon employees alleging that the online retailer failed to protect workers at a New York City warehouse from COVID-19 infections, setting up a test of companies’ duty to follow state safety mandates during the pandemic after OSHA declined to issue an emergency standard.

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."

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.

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.

A federal district court judge has dismissed a lawsuit by worker safety advocates aiming to require a meatpacking plant to apply OSHA guidance for reducing exposures to COVID-19, but advocates are already pursuing a formal rulemaking petition seeking to force the agency to issue an emergency standard for such facilities.

Citing the respondent’s bankruptcy, appellate judges have rejected as moot OSHA’s suit that sought to reverse a ruling from the agency’s independent review panel that raised the bar for citing companies for “repeat” workplace safety rule violations, though the judges also vacated the underlying review panel ruling.

EPA’s first-time decision earlier this year to identify 20 chemicals as low priority for risk evaluation under the Toxic Substances Control Act (TSCA) faces a looming litigation test as the 60-day deadline for environmentalists or other entities to sue approaches on April 26.

OSHA is promising to exercise “discretion in enforcement” if employers are unable to comply with various testing, training, inspection and other safety mandates due to the COVID-19 pandemic, writing in a new memo that there will be no penalties for those violations as long as businesses make “good faith” attempts to comply.

A federal judge has ordered a first-time citizen suit under the revised Toxic Substances Control Act (TSCA) to proceed in a virtual bench trial later this year due to the coronavirus pandemic despite objections from the plaintiffs who had won the right to a de novo proceeding where they will be able to present new evidence to the court.