DOL Files Challenges to OSHA Pandemic Guidance Petition

The Department of Labor filed its response last Thursday to the writ of mandamus in a case filed by the American Federation of Teachers and others against the Occupational Safety and Health Administration and other agencies. The underlying petition addresses the actions taken by OSHA in regards to health and safety standards for the workplace in the face of viral pandemics.

The filing explained that the Occupational Health and Safety Act (OSHA) addresses the general duty of employers to provide employment and places of employment “free from recognized hazards that are causing or are likely to cause death or serious physical harm” and to comply with the applicable standards promulgated under the Act. However, the standard recognized by the court is “reasonably necessary and appropriate to remedy a significant risk of material health impairment.” The writ issued by the AFT seeks to force the issuance of guidance regarding safe workplace environments in the face of viral contamination and epidemics, as well as to issue guidance specifically regarding COVID-19.

The DOL challenges the petition on three grounds. The first ground is that the petitioners have failed to demonstrate that they have standing to file the suit, specifically by failing to allege that any members have suffered an injury caused by the DOL’s failure to issue an overall guidance policy. The DOL contends that citations and rulings have been issued regarding failure to provide respiratory protection and personal protective equipment (PPE) during the pandemic, which shows that the petitioners are being represented and protected despite the lack of overall guidance. The DOL also argues that because the petitioners are using named plaintiffs from states that have elected to set their own standards under the “State Plan” exceptions, which permits states to set stricter limitations than those imposed federally.

The second challenge issued by the DOL regards issue preclusion. The suit by AFT was proceeded by a suit by the AFL-CIO in the D.C. Circuit, requesting that the DOL issue guidance regarding COVID-19 specifically and infectious disease generally, the filing said. The DOL argued that the prior suit, while lacking the same specific plaintiffs, was litigated by parties in direct privity with the plaintiffs as members of a member union of AFL-CIO, resulting in a suite being litigated on exactly the same issue by the same parties, despite the change in jurisdiction. A change in the remedy being sought, argues the DOL, does not change the underlying cause of action either.

The final challenge was due to the lack of duty under the statute to issue the guidance. While the language of 29 U.S.C. § 655 makes compliance with the statute and the guidance issued by the DOL mandatory on the part of employers, the filing argued, the language of the statute is permissive in the actions taken by the DOL. The DOL cited numerous cases quoting the broad discretion the Secretary has in issuing standards, so long as the issuance of the standards complies with the Administrative Procedures Act (APA) which mandates that rulemaking include notice and comment periods, which is the exact type of action that the writ of mandamus petition was seeking to bypass.

The plaintiffs are represented by the Democracy Forward Foundation.