The D.C. Circuit has ruled that it cannot force the federal government to quickly and permanently enact a proposed rule to protect healthcare workers against COVID-19, after a group of unions filed a petition asking it to do so.
The Department of Labor’s Occupational Health and Safety Administration in June 2021 enacted a temporary version of an emergency temporary standard. The standard required healthcare employers, including long-term care operators, to conduct hazard assessments and have written plans to mitigate the spread of the coronavirus, among other measures. But the agency has since pulled back on enforcement, withdrawing the “non-recordkeeping” portions of this standard in December, as it continued to work on creating a permanent rule.
National Nurses United, the AFL-CIO and other unions filed an emergency petition on Jan. 5, asking the appeals court to order OSHA to issue a permanent rule within 30 days and to enforce its temporary version in the meantime.
The U.S. Court of Appeals for the District of Columbia Circuit on Friday ruled that it could not order OSHA to create a permanent standard, Bloomberg Law reported. “OSHA has no clear duty to issue a permanent standard, so we cannot compel the agency to do so,” the judges said.
The court also pushed back on the unions’ request that OSHA act faster.
“OSHA’s determination of whether, when and how vigorously to enforce a particular standard is committed to the agency’s discretion and not subject to judicial review,” the court said.
OSHA officials have said that a permanent standard will come by September or October, according to Bloomberg Law.
A breather for senior living?
The decision could give the senior living industry more time to push back against some of OSHA’s plans. Industry advocates have expressed their displeasure with the proposed rule, calling it “overly prescriptive,” with the potential to create confusion.
Senior living and care advocates have called for the standard to include broader requirements and flexibility to respond to changing circumstances. OSHA should defer to the Centers for Disease Control and Prevention on public health issues, wrote LeadingAge Vice President of Legal Affairs and Social Accountability Cory Kallheim in remarks to the Labor Department agency in April.
In addition to risk assessment and planning requirements, the temporary standard calls on healthcare employers to provide some employees with N95 respirators and other personal protective equipment, and includes protocols for social distancing, employee screening, and cleaning and disinfecting.
“Sufficient guidance and regulations” already exist through the [Centers for Disease Control and Prevention] and the Centers for Medicare & Medicaid Services, and existing OSHA tools to enforce workplace safety are adequate to address pandemic concerns, Kallheim said.
National Nurses United, meanwhile, said it was disappointed with the D.C. Circuit’s decision.
“[W]e will not relent in our efforts to ensure that nurses and all other healthcare workers have the occupational health and safety protections they need to stay safe during the ongoing pandemic,” President Jean Ross, RN, said. “We urge OSHA to issue its promised permanent COVID standard for health care workers as soon as possible.”
Others joining the suit included unions representing nurses in New York and Pennsylvania.
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