A group of labor unions representing nurses asked a federal court on Wednesday to force the Biden administration to adopt a COVID-19 safety standard for health care workers, escalating a rare public fight between the White House and labor allies.
The Occupational Safety and Health Administration implemented an emergency safety standard last June to protect nurses and other frontline health care workers during the pandemic. But the Biden administration announced last week that it was withdrawing key portions of that temporary rule while it continued its work developing a permanent one.
The decision to drop existing standards without the new ones in place angered labor groups and workplace safety advocates amid a surge in COVID-19 caseloads due to the omicron variant. The unions that took the Biden administration to court Wednesday said OSHA’s failure to implement a permanent safety standard amounts to “an extremely dangerous breach of its duties.”
“OSHA is charged with ensuring that employers create and maintain safe workplaces, and this delay in issuing a permanent standard puts the lives of nurses and other health care workers, patients, and our communities, in jeopardy,” said Bonnie Castillo, president of National Nurses United, one of the unions involved in the effort.
The legal effort is backed by other major unions that supported Biden’s presidential campaign, such as the American Federation of Teachers and the American Federation of State, County, and Municipal Employees, as well as the AFL-CIO labor federation.
“OSHA has decided to create a gaping hole in the protection of workers required by Congress.”
– Labor groups in their court filing
Liz Shuler, the federation’s president, said the groups had “no choice but to turn to the courts to ensure that our health care workers are protected.”
OSHA’s emergency standard required hospitals, nursing homes and other health care facilities to develop and implement measures to slow the spread of COVID-19. It also mandated that they provide workers with sufficient protective equipment like N95 respirators, maintain social-distancing protocols and screen patients before they enter the workplace. Employers were required to follow the rules under threat of fine.
On Dec. 27, OSHA said it would be withdrawing all parts of the rule that aren’t related to an employer’s obligation to keep safety records. The agency said that under its interpretation of the law, OSHA only had six months to keep the emergency standard in place while it put together a permanent one. And six months was not enough time to get a permanent regulation through the rulemaking process.
But Jordan Barab, a former deputy assistant secretary at OSHA during the Obama years, argued on his blog Confined Space that the law is not so clear, and six months amounted to “an impossible deadline” to develop a permanent rule. He said the administration should have kept the temporary rules in place for the time being, even if it prompted a legal challenge.
“This decision to pull the rug out from underneath the nation’s millions of nurses, doctors and other healthcare workers on the front lines of the fight against COVID-19 could not have come at a worse time,” he wrote.
When OSHA issued the emergency rule in June, the agency projected it would cover 18 million workers, preventing 295,284 infections and 776 deaths among health care workers over a six-month period. The labor groups that went to court Wednesday noted that COVID-19 still poses a grave danger, and argued that OSHA is obligated to have a standard in place due to its earlier findings.
“Instead, OSHA has decided to create a gaping hole in the protection of workers required by Congress,” they wrote in their filing.
Even though it was dropping most of the emergency standard, OSHA said it would “vigorously enforce” safety rules at health care facilities through what’s known as the “general duty” clause, which states that employers have a general obligation to keep workers safe from harm. But it can be much more difficult for OSHA to issue citations and fines that stick using the general duty clause as opposed to more specific rules.
The fight over the emergency standard for health care comes at a time when the Biden administration is hoping to salvage its vaccination rules amid legal battles.
The White House has issued a rule through OSHA that would require large employers across the country to implement programs in which workers either get vaccinated or undergo weekly testing for COVID-19. It issued another rule through the Centers for Medicare & Medicaid Services that would require vaccination for workers at health care facilities receiving Medicare and Medicaid funding.
Both rules have been challenged in court, and the Supreme Court is scheduled to hear appeals in the cases on Friday.