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OSHA tells 9th Circuit it will prioritize infectious diseases standard

By WK Editorial Staff

In the interim, the parties have requested that the case be placed on hold.

In response to a petition for mandamus brought in the Ninth Circuit last October, the Biden Administration now indicates that the Occupational Safety and Health Administration (OSHA) “intends to prioritize the development of an infectious diseases standard for the healthcare sector” that would protect healthcare workers from infectious diseases spread by contact, droplets, or the air—like influenza, COVID-19, and Ebola.

In October, the American Federation of Teachers (AFT), the American Federation of State, County and Municipal Employees (AFSCME), the Washington State Nurses Association (WSNA), and the United Nurses Association of California/Union of Health Care Professionals (UNAC/UHCP) filed suit against OSHA. The case challenged as unlawful the Trump-era delay of rulemaking on a permanent OSHA standard to protect healthcare workers from the spread of infectious diseases.

Before the pandemic, there were 1.7 million healthcare-associated infections each year, which posed a risk to health care workers. COVID-19 has compounded this risk enormously. According to the CDC, more than 408,000 healthcare workers have been infected with COVID-19, and more than 1,400 have died.

Last week, the parties moved to place the case in abeyance and to file a status report in 60 days, updating the court on OSHA’s prioritization of an infectious diseases standard. The court approved the motion.

Joint statement. In response, the unions issued the following joint statement:

We are encouraged by the Biden administration’s representations about prioritizing rulemaking on a permanent infectious diseases standard.

Healthcare professionals across the nation are working tirelessly in the fight against COVID-19. They should be able to rest assured that their employers are required to take steps to protect them from exposure to infectious diseases like COVID-19, the flu, Ebola, and more.

The Trump administration’s unlawful decision to stall progress on an infectious diseases standard is still causing harm. We’ll continue our fight to ensure OSHA moves ahead with these critical workplace protections for our nation’s healthcare professionals.

More than a decade ago, two of the petitioners—the AFT and 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.

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,” 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.

An infectious diseases standard would require healthcare employers running hospitals, clinics, school nurse offices, drug treatment programs, and other similar workplaces to protect their employees from exposure to harmful infectious diseases spread by contact, droplets, or the air.

Read the petition for mandamus here and nine healthcare professionals and union leaders’ declarations in support of the suit here.

The case is No. 20-73203.