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 That rule was separate from the shot-or-test standard for big U.S. businesses, which was withdrawn by the agency on Jan. 25 in the wake of a Supreme Court ruling that blocked its enforcement.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.
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.