AFT’s health professionals push OSHA for a COVID standard

The COVID-19 pandemic is the most challenging public health crisis the U.S. has seen in decades. In the last year, the pandemic has drastically impacted our members and their families, and our union has lost more than 300 members to COVID-19. For more than a year, nurses and health professionals have strived to provide care for patients while their hospitals and government safety watchdogs have made choices that put them at risk.

healthcare worker with mask and face shield
Photo credit: GettyImages/ Tempura

Many healthcare workers were forced to contend with poor training, missing hazard assessments, inadequate infection control plans, and shortages of adequate personal protective equipment such as N95 respirators, impermeable gowns, gloves, and goggles to protect eyes from splashes, especially early in the pandemic. This is why the AFT and other unions called on the Occupational Health and Safety Administration in March 2020 to issue an emergency temporary standard (ETS) for COVID-19 to protect these workers. In addition, AFT members passed a resolution in July 2020 that advocated for an immediate temporary infectious disease standard and a permanent standard within 24 months of its enactment.

At the time, the Trump administration pushed back, saying the agency already had the tools necessary to protect workers through existing standards such the Respiratory Protection Standard and the General Duty clause. Meanwhile, OSHA allowed “enforcement discretion” and softened requirements by allowing decontamination, extended use and reuse of N95 respirators and lifted the requirement for annual fit testing. The agency was also receiving record numbers of complaints and responding to only a fraction and conducting most of those inspections by letters to the employer, by phone or virtually instead of in person. For example, in fiscal year 2020, OSHA conducted 21,674 inspections compared with 33,393 inspections in 2019.

Last year, AFT members from around the country filed OSHA complaints as part of a “Do Your Job OSHA” national day of action to highlight the agency’s refusal to investigate employers that were placing workers at grave risk of infection and death from the coronavirus. This year, the AFT encouraged members to take action by once again filing complaints with OSHA, their state or local departments of health, or through the grievance process when employer mitigation strategies are deficient. 

Health Professionals and Allied Employees (HPAE) in New Jersey, an AFT affiliate, filed numerous complaints, which resulted in citations and fines against many of their employers. HPAE held town halls and met weekly with its leaders to collect stories about what was going in the facilities where members work. HPAE members were also surveyed about their hazardous working conditions, which resulted in their report “Exposed and at Risk.”

HPAE President Debbie White says the country was “woefully unready” for the pandemic. “We saw that nobody had the wherewithal to protect us, and it was going to be up to us as a state fed to do that, and so we started to meet with our locals, and this is how we gleaned a lot of our information.”

Hospitals were missing the basics, says Ellie Barbarash, HPAE’s health and safety expert. “Our success was based on the fact that foundational pieces of safety management were missing from employers during the pandemic. Some employers’ safety programs were crappy to begin with—and then when COVID hit, the holes in the foundation collapsed the structure. It was just too much.”

HPAE was able to get OSHA to conduct and complete 25 investigations, resulting in 25 sets of citations and fines since March 2020. Many of the facilities cited are now trying to do the right thing, like maintaining their OSHA logs and providing more appropriate training, as well as PPE, respiratory protection, fit testing and medical evaluations for their workers, says Barbarash. “It is making a difference; it’s just that it’s slower when we have more resistance. The process is raising the education level not only of employers, but also of our members and staff.”

In October 2020, the AFT along with the American Federation of State, County and Municipal Employees; the Washington State Nurses Association; and the United Nurses Association of California/Union of Health Care Professionals filed suit against the Trump administration to compel OSHA to advance the rulemaking on an infectious diseases standard. At the time, AFT President Randi Weingarten said that “OSHA and employers must be held accountable to make hospitals safe for the people who work there.”

The Biden administration, in response to that lawsuit, told a federal court that 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—such as from aerosol-transmitted diseases like influenza, COVID-19 and Ebola. In March, the administration released OSHA’s Updated Interim Enforcement Plan and a new National Emphasis Program (NEP). The enforcement plan provides clarity on how OSHA will conduct inspections and issue citations for COVID-19 hazards; and the NEP targets OSHA inspections in “high hazard” industries with high rates of COVID-19, including healthcare.

“Because its focus is on COVID, it will be another tool in OSHA’s arsenal,” Barbarash says of the NEP. “We need this. I’m happy with the NEP; it will release more money for inspection activity, grants and training. However, it’s not a substitution for the ETS that we need for healthcare.”

On April 26, the Department of Labor sent the OSHA emergency temporary standard to the Office of Management and Budget in the Executive Office of the President for a regulatory review. The AFT is hopeful that a standard will be forthcoming.

In some states, the state-run occupational safety administration has stepped into the gap, including California, Michigan, Oregon, Virginia and Washington. Virginia was the first, issuing an ETS last summer, and now the state has a permanent standard. Oregon issued an ETS in November and is currently working toward a permanent COVID-19 standard.

Matt Calzia, a registered nurse and nurse practice consultant for the Oregon Nurses Association/AFT, was part of the effort to get Oregon’s OSHA to establish an ETS. Calzia says that workers in Oregon are starting to see the ETS work. “Hospitals are doing better, and some of the changes you see were because of the work that we did,” he says. “It’s rewarding, but we still have a long way to go; it’s a small step in a longer process.”

Calzia says the pandemic has shown that despite all the money the healthcare industry generates, it was not ready for a pandemic. “These healthcare corporations are completely unprepared. I hate to say it, but it has to been done through regulatory efforts because they are not going to do it on their own. We must start mandating that they keep a certain amount of PPE and provide training,” he says, “but they are not going to do that unless they are forced to.”

Nurses and health professionals shouldn’t become complacent, and they should monitor their employers, Calzia cautions. “It’s important that nurses not only look at the latest medical practice but also what regulates your practice, especially knowing your rights when it comes it OHSA rules and reporting. An informed workforce is the only way to keep the boss in line.”

HPAE’s Debbie White agrees. “I would love to see employers do the right thing, but they won’t; that’s why we need unions.” She also will continue the fight for an ETS and eventually a permanent standard, and so will Calzia.

“Our hope is that the federal standard would focus on making workers safe as well as the science; that it will be less concerned about the comfort of employers and more concerned about preventive, proactive steps that employers need to take so they are prepared for the next disaster or pandemic,” says Calzia.

[Adrienne Coles]