Labor & Employment Law Daily Unions ask the Ninth Circuit to compel OSHA to issue infectious disease standard
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Monday, November 2, 2020

Unions ask the Ninth Circuit to compel OSHA to issue infectious disease standard

By Pamela Wolf, J.D.

By delaying a rulemaking expected to issue in 2017, OSHA is violating the OSH Act and the APA, the petitioners contend.

On October 26, a coalition of teachers’ unions filed a petition for writ of mandamus in the Ninth Circuit Court of Appeals in an effort to compel OSHA to advance a rulemaking on an infectious diseases standard, which would require healthcare employers who run hospitals, clinics, school nurse offices, drug treatment programs, and similar workplaces to protect their employees from exposure to harmful infectious diseases.

According to the petition, OSHA, the Department of Labor, and Labor Secretary Eugene Scalia violated the Administrative Procedure Act (APA) and the Occupational Safety and Health (OSH) Act by unreasonably delaying action on an infectious diseases standard.

More than a decade ago, two of the petitioners—the American Federation of Teachers (AFT) and American Federation of State, County, and Municipal Employees (AFSCME)—petitioned OSHA for an occupational safety and health standard to protect healthcare workers from the risks of infectious diseases transmissible by non-bloodborne routes, such as by contact, droplets, and the air (Infectious Diseases Standard), according to Ninth Circuit petition.

In addition to the AFT and AFSCME, the Washington State Nurses Association and the United Nurses Association of California/Union of Health Care Professionals also joined in the petition for writ of mandamus.

OSHA was poised to issue a standard. Even before the COVID-19 pandemic hit, infectious diseases caused 1.7 million healthcare-associated infections every year in the United States, the petition states, noting that these infections are dangerous, and some can be fatal, such as tuberculosis, bacterial meningitis, or Ebola. Acknowledging this risk, OSHA began the rulemaking process to issue a responsive standard. As of 2016, the federal health and safety agency was poised to issue the necessary standard, projecting its completion in 2017.

Rulemaking halted under the Trump Administration. But instead, when the White House administration changed, “OSHA shelved the rulemaking altogether and has refused to carry out its statutory obligations—even in the midst of the deadliest pandemic in a century, which conservative estimates show has infected over 190,000 healthcare workers in the United States and claimed more than 770 of their lives,” according to the petition.

Unlawful delay in rulemaking. The petitioners allege that OSHA’s decade-long delay “is unreasonable and unlawful.” In the OSH Act, Congress compelled OSHA to issue binding standards when significant health risks exist in America’s workplaces, the petition states. “Having determined the necessity of a standard, OSHA has had a duty to issue such a standard regarding infectious diseases in healthcare workplaces for a decade, a delay far longer than any court has ever judged reasonable,” the petition states. The long delay in issuing a standard is purportedly unlawful under the balancing test established under Telecommunications Research & Action Center v. FCC (D.C. Cir. 1984), and used by the Ninth Circuit to determine reasonableness due to the length of delay, absence of any reasonable timeline, and harm to health.

Relief requested. Thus, the petitioners contend that the federal appeals court should issue a writ of mandamus under the All Writs Act and the APA compelling OSHA to cease its unlawful delay in issuing an “Infectious Diseases Standard.” The agency should be required to issue a notice of proposed rulemaking for the standard within 90 days of the mandamus order and to proceed on a priority, expedited basis to promptly issue a standard.

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