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Unions Seek Appeals Court Review of OSHA Virus Standard (2)

June 25, 2021, 1:36 PMUpdated: June 25, 2021, 6:47 PM

The AFL-CIO labor federation and two individual unions are asking federal appeals courts to review OSHA’s new Covid-19 emergency temporary standard for the health-care industry.

The AFL-CIO and United Food and Commercial Workers filed a joint petition with the U.S. Court of Appeals for the District of Columbia Circuit on Thursday, complaining the Occupational Safety and Health Administration’s measure was drawn too narrowly.

“The ETS, which protects healthcare and healthcare support service workers from occupational exposure to COVID-19, fails to protect employees outside the healthcare industry who face a similar grave danger from occupational exposure to COVID-19,” according to the filing.

National Nurses United also filed a petition for review Thursday, but with the U.S. Court of Appeals for the Ninth Circuit in San Francisco. It didn’t specify what concerns the union has with the standard. The union declined to explain its position when asked, but said in a statement issued through a spokesperson: “We support every effort to expand and improve the coverage of the ETS.”

Leaders of the AFL-CIO and UFCW have been critical of the Biden administration’s OSHA for limiting the standard to health care when there have been high Covid-19 case counts among other workers, including those in the meatpacking, transportation, warehousing, and service industries.

Labor Secretary Marty Walsh, whose department oversees OSHA, has defended the decision to limit the regulation to health-care workers.

“The science tells us that health-care workers, particularly those who come into regular contact with the virus, are most at risk at this point in the pandemic,” the secretary said in a June 10 press conference announcing the standard’s release.

Walsh acknowledged other workers were also at risk and said the agency’s updated guidance would help protect them.

The safety agency, in the lengthy justification that accompanied the standard, doesn’t explain why non-health-care workers were left uncovered.

The standard took effect June 21 and the first compliance deadline for employers is July 6.

In general, it requires hospitals and other health-care providers treating patients with known or suspected Covid-19 infections to implement protection programs. The standard also requires pay for quarantined or isolated workers and for employers to track all Covid-19 cases among workers.

A spokesperson for the Department of Labor said the agency is “reviewing the petition” but cited a policy of not commenting on pending litigation.

—With assistance from Fatima Hussein

The cases are Nat’l Nurses United v. OSHA, 9th Cir., No. 21-71142, 6/24/21 and
United Food and Commercial Workers v. OSHA, D.C. Cir., No. 21-01143, 6/24/21.

(Adds prior comment from Labor Secretary Marty Walsh, in paragraphs 6-8.)

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; John Lauinger at jlauinger@bloomberglaw.com

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