OSHA Urged to Retain Emergency Temporary Standard for Health Care Workers

WASHINGTON — The U.S. Circuit Court of Appeals for the District of Columbia heard an oral argument Monday from National Nurses United regarding the Department of Labor’s Occupational Safety and Health Administration’s emergency temporary standard for protecting health care workers against COVID-19.

“OSHA is treating the [emergency temporary standard] as if it has expired, even though the statute requires it to remain in effect,” said Nicole Daro, legal director from NNU who argued the case, in an email to The Well News. 

On June 21, 2021, OSHA adopted a health care Emergency Temporary Standard to protect health care workers from COVID-19 in settings where they provide care and support. 

In December, OSHA issued a statement that the agency was, “working expeditiously to issue a final standard that will protect health care workers from COVID-19 hazards,” and that the department was working towards a “permanent regulatory solution.” 

“Under the OSH Act, an ETS is effective until superseded by a permanent standard, a process contemplated by OSH Act to occur within six months of the ETS’s promulgation,” reads the statement on the Status of the OSHA COVID-19 Healthcare ETS.

Daro said that OSHA is violating Section 6(c)(3) of the OSH Act by refusing to give effect to the ETS.

“OSHA does not dispute that it has not issued a permanent standard within the six-month period,” said Daro. 

On Jan. 5, 2022, NNU and other leading labor organizations and unions filed an emergency petition to order OSHA to issue a permanent standard that requires employers to protect health care workers against COVID-19, and retain the existing emergency temporary standard, as required by law, until the permanent standard goes into effect. 

According to Daro, NNU’s members have made OSHA complaints under the ETS, and have been told by OSHA agents that the ETS is no longer in effect so they won’t investigate the complaints.

“Without the federal ETS in place, states are on their own to protect or not protect workers from COVID-19. This leads to a patchwork of regulations, whereas the ETS created one uniform national standard,” said Daro.

Already Virginia and North Carolina have withdrawn the ETS standard, meaning health care workers in those areas are not legally bound to any national ETS policy.

The ETS for health care employees includes key requirements for employers to develop and implement a COVID-19 plan, designate workplace safety, and conduct workplace-specific hazard assessments.

The list provided by OSHA includes things like limiting and monitoring points of entry to settings where direct patient care is provided, screening each employee before the work day and each shift, and providing employer-testing at no cost to employees. 

Other requirements for employers include providing and ensuring employees wear facemasks, keeping a log of all employee instances of COVID-19, and performing aerosol-generating procedures on persons suspected or confirmed with COVID-19. 

Employers were required to comply with the provisions of the ETS within 14 days of the order, and OSHA advised it would use its enforcement discretion to avoid citing employers who are making a good faith effort to comply with the ETS. 

“OSHA must act quickly to prevent unnecessary death and infection of nurses and other frontline healthcare workers,” said Daro. 

According to Daro, OSHA itself estimated that the ETS would save approximately 776 lives and prevent 300,000 infections in a six-month period.

As of Monday, based on NNU’s count, more than 5,000 health care workers, consisting of 491 nurses and 4,583 other health care workers, have died due to COVID.

“The writ of mandamus that NNU seeks is an order compelling OSHA to retain and enforce the ETS and to promulgate a permanent standard on an expedited basis,” said Daro. 

The court did not make any ruling on Monday, but Daro said she anticipates an order from the court in the coming weeks.

“If the court grants this writ, we expect that OSHA will comply with the order by resuming enforcement of the ETS,” said Daro. 

In response, a Department of Labor spokesperson told The Well News that “in its brief filed with the DC Circuit in the National Nurses United case, OSHA stated that it is focusing its resources on developing a permanent standard to protect healthcare workers from COVID-19 hazards. 

“OSHA continues to respond to and investigate complaints related to COVID-19 hazards using the OSH Act’s general duty clause and OSHA’s general standards, including the Personal Protective Equipment (PPE) and Respiratory Protection Standards. The brief also states that the agency will accept compliance with the terms of the Healthcare ETS as satisfying employers’ related obligations under the general duty clause, respiratory protection, and PPE standards,” the spokesperson said.

Alexa can be reached at [email protected]