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Health-Care Workers in Grave Danger Absent OSHA Rule, Unions Say

Jan. 27, 2022, 10:12 PM

The Biden administration’s decision to cancel its OSHA Covid-19 standard protecting health-care workers violates federal law and leaves those workers exposed to a grave danger, unions said in a federal appeals court brief filed Thursday.

“Whatever discretion OSHA may have in other contexts, it does not have the discretion to abandon healthcare workers while it formulates a final rule on a timetable of its own choosing,” the unions told the U.S. Court of Appeals for the District Columbia Circuit.

Their brief comes in a Jan. 5. lawsuit filed by National Nurses United, the American Federation of Teachers, and other labor groups including the AFL-CIO, seeking an order compelling the Occupational Safety and Health Administration to reinstate the measure until such time as a permanent rule is in place, and to issue that fixed measure within 30 days of being ordered to do so.

OSHA, on Dec. 27, dropped its Covid-19 emergency temporary standard focused on the health-care industry. That rule was separate from the shot-or-test standard for big U.S. businesses, which was withdrawn by the agency on Jan. 25 in the wake of a Supreme Court ruling that blocked its enforcement.

The Occupational Safety and Health Act says that when the agency enacts an emergency temporary standard, it must issue a permanent standard within six months. The health-care workers measure was published in June.

Whose Timetable?

After the court action was filed, OSHA said in an opposing brief it was unable to meet the Dec. 21 deadline to issue a permanent health-care rule because its staff had been focused on the now-canceled vaccination-or-test standard. However, the workplace safety regulator said it would try to issue a health-care standard in six to nine months.

“In other words, the Agency intends to leave healthcare workers exposed to ‘grave danger’ without ‘necessary’ protections for a minimum of six months,” the unions said in their Thursday filing.

The labor groups pointed out that since the standard’s withdrawal, Covid-19 cases among health-care workers have spiked.

“The rate of infection among healthcare workers is so high that some hospitals claim they cannot operate without requiring Covid-19 positive employees to report to work, further increasing the spread of Covid-19 in the workplace,” the brief said.

The court hasn’t said whether there will be oral arguments or indicated when there will be a decision.

The case is Nat’l Nurses United v. Sec’y of Labor, D.C. Cir., No. 22-1002, 1/27/22.

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

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com