On July 28, the United States Court of Appeals for the District of Columbia Circuit (“DC Circuit”) declined to rehear the unanimous ruling of a three-judge DC Circuit panel that denied the AFL-CIO’s request that the court compel the U.S. Occupational Safety and Health Administration (“OSHA”) to an emergency temporary standard (“ETS”) to protect workers from coronavirus. This rejection of the AFL-CIO’s petition for rehearing en banc, signals that the AFL-CIO’s five-month effort to compel OSHA to issue an ETS has likely come to an end.
Unless the Supreme Court agrees to review the ruling, or OSHA reconsiders its position (both quite unlikely), employers will not be subject to a new workplace health standard for COVID-19. Instead, they will continue to be subject to the Occupational Safety and Health Act’s (“OSH Act’s”) “general duty” to protect their employees from recognized workplace hazards, as well as the myriad of OSHA regulations and guidance that direct employers on specific elements of workplace safety (i.e., PPE, training, recordkeeping). But before we roll the credits on this fast and furious litigation, perhaps a recap is in order.