Appeals court denies health care worker groups’ petition for a permanent COVID-19 standard

Washington — The U.S. District Court of Appeals for the District of Columbia Circuit has ruled it doesn’t have the authority to order OSHA to issue a permanent standard on COVID-19 for the health care industry, denying an emergency petition filed by National Nurses United and other labor groups.

The petitioners took the legal action against OSHA in January after an emergency temporary standard for health care workers, issued in June 2021, wasn’t made permanent. They argued that health care workers’ well-being was in grave danger without the protections provided by the ETS, and asked the court to direct OSHA to retain it until a permanent standard can take its place.

In a unanimous ruling handed down Aug. 26, a three-judge panel said it couldn’t order the agency to promulgate a permanent standard “because at the conclusion of the rulemaking process, OSHA is permitted to determine that no standard should issue.”

The other petitioners: AFL-CIO; American Federation of Teachers; American Federation of State, County, and Municipal Employees; New York State Nurses Association; and Pennsylvania Association of Nurses and Allied Professionals.

In June, Labor Secretary Marty Walsh testified before the Senate Labor, Health and Human Services, Education, and Related Agencies Subcommittee that a permanent standard on COVID-19 for the health care industry may be published sometime in the fall, echoing comments made by OSHA administrator Doug Parker a few weeks earlier during a House Workforce Protections Subcommittee hearing.

In a press release, NNU President Jean Ross said nearly 500 registered nurses and more than 4,800 other health care workers have died from COVID-19. “We will not relent in our efforts to ensure that nurses and all other health care workers have the occupational health and safety protections they need to stay safe during the ongoing pandemic.

“We urge OSHA to issue its promised COVID standard for health care workers as soon as possible.”

In a separate press release, AFL-CIO President Liz Shuler calls on OSHA to “swiftly complete and issue” the permanent standard.