RE: OSHA Emergency Temporary Standard - Covid 19
Regardless of what any of us think, OSHA may only promulgate standards (emergency or otherwise) in accordance with Title 5 U.S.C. (Administrative Procedures Act) and citations must comply with 29 CFR as well as the Statute (OSH Act).
On occasion OSHA fails to follow the above mentioned laws and is reversed by either the OSHRC or the Circuit Court of Appeals. This happens more frequently than it should.
The DOL employees a host of lawyers who are well versed in statutory and regulatory law and I suspect they know when OSHA is not fully complying with the applicable statutes. I don't pretend to know the motivation behind this strategy but review of several recent reversals by appeals tribunals reveals this approach to be a problem.
Jim Keating
From: ACS Division of Chemical Health and Safety <DCHAS-L**At_Symbol_Here**Princeton.EDU> On Behalf Of Neal Langerman
Sent: Thursday, November 4, 2021 10:54 AM
To: DCHAS-L**At_Symbol_Here**Princeton.EDU
Subject: Re: [DCHAS-L] OSHA issues emergency temporary standard to protect workers from coronavirus
It is in the best interest of businesses of any size to ensure all employees are vaccinated. The federal action gives them coverage by saying government requires they get vaccinated. Airlines clearly state that mask wearing is a federal requirement, implying that this protective action is not what the airline wants.
As to litigation, the OSHA rule will be challenged in Court within a few days.
Insurance carriers and attorneys will take up any slack, no doubt.
It will be interesting to see if anyone ultimate pursues class actions based on the OHSA General Duty Clause, particularly from early in the pandemic in places like meat processing facilities. See, for example, https://www.cbsnews.com/news/covid-19-meat-workers-59k/ I would expect that any defendant would try to argue that not enough was known at the time to take proper measures, but that the discovery process will ultimately show otherwise.
Employers can be cited for violation of the General Duty Clause if a recognized serious hazard exists in their workplace and the employer does not take reasonable steps to prevent or abate the hazard. The General Duty Clause is used only where there is no standard that applies to the particular hazard. The following elements are necessary to prove a violation of the General Duty Clause:
- The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed;
- The hazard was recognized;
- The hazard was causing or was likely to cause death or serious physical harm; and
- There was a feasible and useful method to correct the hazard.
Slam dunk case in my mind.
I wonder if OSHA has an enforcement strategy for this that reflects its resource levels?
- Ralph
https://content.govdelivery.com/accounts/USDOL/bulletins/2fab063
News Release from OSHA
U.S. Department of Labor | November 4, 2021
US Department of Labor issues emergency temporary standard to protect workers from coronavirus
Increases protections for 84M private sector workers
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