Labor & Employment Law Daily HHS, DHS sued over failure to ensure COVID-19 PPE protection for essential workers
Tuesday, October 13, 2020

HHS, DHS sued over failure to ensure COVID-19 PPE protection for essential workers

By Pamela Wolf, J.D.

The suit follows the departments’ alleged failure to respond to an August 11 emergency rulemaking petition asking them to take action under the DPA.

Labor unions representing healthcare workers, teachers, transit operators, and millions of other frontline workers, along with environmental groups have filed a lawsuit against the U.S. Departments of Health and Human Services and Homeland Security over the agencies’ alleged failure to provide adequate reusable respirators, N95 masks, gloves, and other personal protective equipment (PPE) to essential workers amid a COVID-19 pandemic that continues to rapidly infect people all across the United States.

COVID-19-embattled nation. Filed in a federal court in the District of Columbia on October 8, 2020, the lawsuit comes against the backdrop of a White House engulfed with COVID-19—more than a dozen high-level aides, additional White House staff, and frontline workers on Capitol Hill have tested positive for the coronavirus, the groups noted in a release.

The United States has reached nearly 210,000 deaths and 7.5 million infections from the coronavirus and is now preparing for flu season. Healthcare workers, teachers, transit operators, and other essential workers are reusing PPE or buying their own as schools open and states and cities across the country relax COVID-related restrictions.

Use the Defense Production Act! In March, President Trump issued a series of executive orders declaring a national emergency due to COVID-19 and delegating broad powers to HHS Secretary Alex Azar and DHS Acting Secretary Chad Wolf under the Defense Production Act. The DPA is designed to ensure the provision of essential materials and goods during public health emergencies. But the secretaries have failed to fully utilize their authority, leading to a shortage of PPE, according to the plaintiffs.

Steady growth in COVID-19 cases nationwide has led to a shortage of lifesaving equipment, including gloves, masks, gowns, and sterilizing supplies, for millions of essential workers, the plaintiffs contend. People of color are more likely to be part of the essential workforce and at higher risk of death from the coronavirus. Secretaries Azar and Wolf should immediately use the DPA to ensure adequate PPE supply for frontline workers, according to the complaint.

Unanswered employer rulemaking petition. On August 11, 2020, the groups filed an emergency rulemaking petition demanding action, but “in a stunning act of agency nonfeasance during this unprecedented health and national security emergency, the Departments have ignored the Petition,” the complaint alleges. The failure of HHS and DHS to respond violates the Administrative Procedure Act, the plaintiffs contend.

The groups are thus seeking injunctive relief, among other things, directing HHS and DHS to immediately respond to the petition “with the mammoth action necessary to safeguard the millions of essential workers powering the country’s survival, in spite of their own devastatingly disproportionate rates of mortality and morbidity.”

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