Court Sides with OSHA, NAHB and Others on Emergency Infectious Disease Standard

The D.C. Circuit Court of Appeals Thursday rejected a petition by labor unions led by the AFL-CIO to compel OSHA to issue an "emergency temporary standard" to prevent the transmission of infectious diseases, including COVID-19.

The court agreed with OSHA's position that it was the federal agency that should determine whether a standard was necessary and that OSHA's decision to issue nonbinding, industry-specific guidance rather than an enforceable rule to protect workers from COVID-19 was sufficient.

OSHA said in a statement: "We are pleased with the decision from the D.C. Circuit, which agreed that OSHA reasonably determined that its existing statutory and regulatory tools are protecting America’s workers and that an emergency temporary standard is not necessary at this time. OSHA will continue to enforce the law and offer guidance to employers and employees to keep America’s workplaces safe."

NAHB filed an amicus brief supporting OSHA's position with a coalition of other groups including the Associated Builders and Contractors, the American Road and Transportation Builders Association, the American Subcontractors Association, Leading Builders of America, and the Mason Contractors Association of America.

With public health officials learning new information about COVID-19 and how best to mitigate related hazards on an almost daily and sometimes even hourly basis, the construction industry argued that a static, inflexible rule would not be an appropriate response.

"The D.C. Circuit’s decision correctly recognizes that OSHA is the Agency tasked by Congress to determine whether a rule is needed to protect employees from potential workplace hazards and not the courts," said Brad Hammock, attorney at Littler Mendelson, P.C. who submitted the brief on behalf of the coalition. "In addition, the opinion reflects the significant efforts already taken by employers – including construction contractors – to address COVID-19 proactively."

NAHB and its construction safety coalition partners issued job site coronavirus safety guidance in late March and has been constantly adding new resources to keep workers safe from COVID-19 on the job site. The entire construction industry held safety stand downs in April focused on coronavirus safety.

For questions about NAHB litigation, contact Felicia Watson.