Sarah Hager Mosby
WASHINGTON—National leading labor organizations and unions representing the country’s nurses and health care workers today petitioned the United States Court of Appeals for the District of Columbia Circuit to order the Department of Labor’s Occupational Safety and Health Administration (OSHA) to issue a permanent standard that requires employers to protect health care workers against Covid-19. The petitioners include AFL-CIO; American Federation of Teachers (AFT); National Nurses United (NNU); American Federation of State, County, and Municipal Employees (AFSCME); as well as some of the nation’s other major nursing unions, including the New York State Nurses Association (NYSNA) and Pennsylvania Association of Nurses and Allied Professionals (PASNAP).
The unions took this legal action after the Department of Labor failed to make permanent the emergency temporary standard (ETS) on Covid-19 that took effect on June 21, 2021. Without the protections of a permanent standard, the health and well-being of nurses, other health care workers, patients, and the general public is in grave danger.
The unions petitioned the court to issue a writ of mandamus ordering OSHA to issue a permanent standard for health care occupational exposure to Covid-19 “aimed at protecting the life and health of millions of nurses and other frontline health care workers throughout the United States in grave danger from the deadly Covid-19 pandemic,” and retain and enforce the June 21 emergency temporary standard until it is properly superseded by the permanent standard.
The failure to retain the existing ETS and to adopt a permanent rule protecting health care workers violates the unambiguous command of the Occupational Safety and Health Act. According to the petition, “when OSHA determines an emergency situation exists (as it did here) and issues an emergency standard, that emergency standard must stay in effect until a final rule is issued, which must be done within six months of publication of the emergency standard.”
Nurses note that the grave danger that led to issuance of the emergency temporary standard not only remains, but has dramatically increased with the Omicron variant and current surge in infections and hospitalizations. On Dec. 28, just one day after OSHA announced its plans to rescind the ETS, the seven-day average for new Covid-19 cases broke all previous records when it reached 267,000 cases.
When OSHA issued the ETS in June, the agency noted that as of May 24, 2021, the Centers for Disease Control and Prevention (CDC) had reported 491,816 health care workers had contracted Covid-19 and 1,611 had died from it. By Dec. 30, 2021, the CDC reported that those numbers had almost doubled: 803,454 health care workers had contracted Covid-19 and 3,063 had died from the disease.
In light of this stark reality, OSHA’s refusal to issue a national, permanent, enforceable standard requiring employers to protect workers in health care settings is an extremely dangerous breach of its duties. The nation’s nurses remember well how, before the June 2021 OSHA standard, health care employers frequently denied their employees protections and policies such as personal protective equipment, testing, isolation, and more.
“We are still in the midst of a deadly pandemic, and health care workers are facing dangerous exposures to Covid-19 and need the strongest possible protections in their workplaces. We must treat the surge in new cases as the crisis that it is. That means retaining and enforcing the emergency standards originally set by OSHA. Covid-19 hospitalizations have increased nearly sixfold in the last six months. In the face of the Omicron variant, it is not the time to roll back protections, but to fully enforce and make them permanent. We have no choice but to turn to the courts to ensure that our health care workers are protected as they provide such critical care throughout this pandemic.” — Liz Shuler, AFL-CIO president
“Healthcare workers have been on the frontlines of our battle against COVID during the entirety of this pandemic. They have cared for the sick, over and over again, and many have suffered debilitating illness or even died. In the last few weeks, as a result of omicron, many have gotten sick again. They are exhausted. They protect us, and it’s OSHA’s job to protect them. So you can imagine our surprise and shock that, as a new variant of COVID was surging in the United States, OSHA let lapse its standard that required hospital employers to provide layers of mitigations to keep their workers safe. Frontline healthcare professionals need this emergency protection to continue to ensure they have PPE, time off when necessary, and other workplace protocols that enable them to safely care for their patients, themselves and their families. Letting the standard expire puts our beleaguered medical professionals at risk at the worst time. Now is not the time to abandon our frontline caregivers. OSHA and employers must be held accountable to make places where the sick are cared for as safe as possible for the people who work there. And when workers are safe, patients are safe.”— Randi Weingarten, AFT president
“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. We have seen far too many of our fellow nurses die during this pandemic. As of today, we have recorded the deaths of 476 nurse deaths from Covid. Going to work should not mean putting your life and the lives of your loved ones in danger. It is time for OSHA to issue a permanent standard and protect nurses and health care workers who are on the front lines working to save the lives of others.” — Bonnie Castillo, RN, National Nurses United executive director
“Nurses and health care workers are the heroes who got us through the worst of the pandemic — but we’re not through with Covid-19 yet. Just this week, the U.S. hit a record single-day number of Covid-19 cases: over 1 million. Now is not the time for OSHA to remove the lifesaving protections that have allowed those in our health care settings to do their essential work safely and effectively. To save lives and protect our frontline heroes, OSHA must not rescind the emergency temporary standard and instead promulgate a permanent health care standard to protect the lives and health of millions of nurses and other health care workers in grave danger from the deadly Covid-19 pandemic.” — Lee Saunders, AFSCME president
“The executive branch directed OSHA to issue an airborne infectious disease standard to protect workers during a pandemic that has overwhelmed the nation. With infections and hospitalizations on the rise, frontline hospital nurses and health care workers desperately need enforceable standards for personal protective equipment, exposure notification, ventilation systems, and other lifesaving measures. In failing to follow their own mandate to create a permanent standard, OSHA has put nurses, health care workers, and the public's health at risk of even greater harm. The Department of Labor has left nurses and their patients in serious jeopardy.” — Pat Kane, RN, NYSNA executive director.
“For the past two years, frontline health care workers have willingly sacrificed their own physical and mental health to protect the American public. This decision to pull the rug out from underneath the nation’s health care workers on the front lines of the fight against Covid-19 is indefensible and will certainly lead to more unnecessary infections, illnesses, and deaths. We implore our government to stand up to the hospital association lobby and implement the rules and regulations needed to keep our frontline health care workers safe as they continue to care for the public and battle this raging disease.” — Maureen May, RN, PASNAP president