Taken from The Washington Post
October 29, 2020
Unions representing hundreds of thousands of nurses and health-care workers filed a lawsuit against the Occupational Safety and Health Administration on Thursday, alleging that the agency is violating its duties to keep workers safe by failing to issue an infectious-disease standard to protect health-care workers during the pandemic.
The lawsuit was filed by the American Federation of Teachers, American Federation of State, County and Municipal Employees, the Washington State Nurses Association and the United Nurses Associations of California with the U.S. Court of Appeals for the 9th Circuit. It alleges OSHA’s decision not to set safety standards about infectious diseases is “unreasonable and unlawful” and a violation of federal law that requires the agency to issue standards for significant health risks.
The move is the latest example of the brewing frustrations among labor advocates and Democrats over OSHA’s refusal to aggressively enforce workplace safety during the pandemic. A similar lawsuit filed by the AFL-CIO during the pandemic was dismissed by a judge in the summer, while another lawsuit, filed by a group of meatpacking workers who say OSHA’s inaction has left them in danger, is ongoing.
Former OSHA officials have spoken out forcefully against the agency, but the Trump administration has defended the agency’s approach.
The lawsuit seeks a writ of mandamus — a court order that would require OSHA to fulfill its duties.
“OSHA has a duty to issue a safety and health standard to protect healthcare workers from the significant risk of harm from infectious diseases,” the complaint reads. “The record of this risk to public health, even in ordinary times, is clear. The risks are especially high during pandemics like H1N1 in 2009 and now COVID-19. OSHA’s 10-year delay in acting on the Infectious Diseases Standard is unreasonable.”
OSHA says its existing standards are sufficient to keep workers safe from the pandemic at work. It has received 9,818 coronavirus-related complaints during the pandemic and issued 112 citations. In a statement sent by spokeswoman Megan P. Sweeney, it pointed to the dismissal of the AFL-CIO’s lawsuit.
“The Department is committed to protecting America’s workers during the pandemic, and OSHA has been working around the clock to that end,” the statement said. “Since that court ruling, OSHA has continued to rely on its preexisting authorities in order to keep America’s workplaces safe.”
More than 192,000 health-care workers have been infected with the coronavirus and at least 771 have died, according to statistics from the Centers for Disease Control and Prevention.
The complaint gives a detailed history of the effort by OSHA to draft a rule for infectious diseases for health-care facilities.
The effort began during the Obama administration before languishing during the Trump administration.
After the H1N1 outbreak in 2009, OSHA began the long process of drafting a new rule. In the ensuing years, it sought outside input, created a proposed regulatory framework and met with small businesses and other stakeholders.
But the Trump administration moved the process from the Unified Regulatory Agenda to the list of “Long-Term Actions,” effectively shelving it, the complaint argues.
Michael Martinez, a lawyer at Democracy Forward, a left-leaning group that is helping litigate the case, said it was different from the AFL-CIO case, which sought an emergency standard that would have been temporary. The new lawsuit seeks the resumption of the existing rulemaking process for a new permanent safety standard that would apply only to workers at health-care facilities.
“The risk has been here for a decade, but now we’re in the middle of a pandemic,” he said. “There’s no real end in sight. And the next pandemic is around the corner.”
The lawsuit notes that infections in health-care facilities were a significant issue even before the pandemic: They lead to approximately 99,000 patient deaths and $20 billion in additional health-care costs every year, the complaint said.
Randi Weingarten, president of the American Federation of Teachers, which represents more than 100,000 health-care workers in addition to teachers, said the lawsuit was given more urgency by the virus’s recent surge.
“OSHA’s abdication of its responsibility to keep workers safe is as important today as it was in March and April,” she said in an interview. “So we are trying to get them to do their job, which under the Trump administration they have refused to do. It is terrifying to see how the Trump administration sees regular workers as disposable and expendable.”