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Big Unions Sue OSHA to Force Infectious Disease Regulation (1)

Oct. 29, 2020, 8:21 PMUpdated: Oct. 30, 2020, 1:45 PM

A coalition of unions filed a petition Thursday asking the Ninth Circuit to order the federal Occupational Safety and Health Administration to enact a rule protecting workers from airborne diseases as Covid-19 cases continue to soar.

The unions, including American Federation of Teachers and American Federation of State, County, and Municipal Employees, want the San Francisco-based court to require OSHA to accelerate its long-delayed infectious disease standard (RIN:1218-AC46), which the agency has been working on since 2010.

The U.S. Court of Appeals for the Ninth Circuit is specifically asked to require OSHA to issue a notice of proposed rulemaking for the standard within in 90 days of the court decision and for the regulator to “proceed on a priority, expedited basis to promptly issue a standard.”

A notice of proposed rulemaking typically includes suggested versions of the rule and opens the door for public comment. Issuing a final version of the rule would come later.

The infectious disease rule was started by the Obama administration OSHA in the aftermath of H1N1 virus concerns. Development of the rule was set aside as OSHA focused on issuing a rule in 2016 protecting workers from breathable silica dust. The Trump administration in 2017 downgraded the rule to long-term project status.

In announcing the lawsuit’s filing, AFT President Randi Weingarten said, “In times of national crisis, the government’s job is to protect people—and in the case of protecting workers on the front line of this pandemic, the federal government has failed.”

An OSHA spokesperson said the agency would respond to the lawsuit “through the appropriate legal processes,” adding that as of Oct. 22, the agency had issued 112 citations related to coronavirus and proposed $1.6 million in penalties.

Other unions have unsuccessfully tried to convince federal courts to require OSHA to enact an emergency temporary standard for Covid-19. The Trump administration had refused to pursue an emergency rule, saying existing OSHA regulations, such rules protecting workers from blood-borne diseases and requiring use or protective equipment, are adequate.

Cause of Action: Petition for writ of mandamus

Relief: Require OSHA to proceed with infectious disease rule

Attorneys: Michael C. Martinez, Jeffrey B. Dubner and Sean A. Lev for the Democracy Forward Foundation in Washingon represent the unions

The case is Am. Fed’n of Teachers v. OSHA, 9th Cir., No. 20-cv-73203, 10/29/20.

(Updated with comments from OSHA in 7th paragraph. Story originally published Oct. 29.)

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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