U.S. Court of Appeals Finds “No Clear Duty” for OSHA To Issue Permanent COVID-19 Healthcare Standard

By Charles P. Keller

In June 2021, the United States Department of Labor, Occupational Safety and Health Administration (“Fed OSHA”) enacted a COVID-19 Emergency Temporary Standard (“ETS”) governing the health care industry.  The ETS had a statutory time period of six months.  Upon expiration of the six-month time period, Fed OSHA stopped enforcing the COVID-19 ETS on December 21, 2021.  Since the lapse of the COVID-19 ETS, Fed OSHA has stated that it plans to issue a permanent healthcare COVID-19 regulation.

Believing that Fed OSHA was not moving expeditiously towards the issuance of a permanent standard, several unions, including the AFL-CIO and National Nurses United, filed a lawsuit in the U.S. Court of Appeals for the District of Columbia Circuit.  In the lawsuit, the unions requested that the appeals court issue a writ of mandamus requiring Fed OSHA to issue the permanent COVID-19 healthcare standard within 30 days. Oral argument was held on April 4, 2022.

On August 26, 2022, the U.S. Court of Appeals ruled against the unions, holding that “OSHA has no clear duty to issue a permanent standard.”  The U.S. Court of Appeals went on to state that it could not compel the Agency to issue such a standard, nor did the court have jurisdiction to set OSHA policies and/or timetables for enacting such standards.

While Fed OSHA continues to work through the rulemaking procedure to issue a permanent COVID-19 healthcare industry standard, Fed OSHA states that it will continue to inspect healthcare employers and rely on the general duty clause as well as specific OSHA standards to protect healthcare workers from infectious disease.