Danger Zone: Amidst the COVID-19 Pandemic, Unions Petition the Ninth Circuit to Compel OSHA to Issue An Infectious Diseases Standard

By Molly Walker. 

At the end of October 2020, the CDC reported nearly nine million COVID-19 cases and over 200,000 COVID-19 deaths in the United States. The positive case count for individuals with COVID-19, the coronavirus disease, continues to soar. The unprecedented nature of the disease along with the serious health implications it poses have prompted an abundance of legal claims. Recently, several unions petitioned the United States Court of Appeals for the Ninth Circuit to compel the Occupational Safety and Health Administration (OSHA) to create standards addressing infectious diseases in the workplace.

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The Petition

On October 29, 2020, several unions, consisting of teachers, government employees, and health care workers, jointly filed a petition with the United States Court of Appeals for the Ninth Circuit. The petition asks the United States Court of Appeals for the Ninth Circuit to compel OSHA to promulgate a safety standard pertaining to infectious diseases in healthcare workplaces.

The petition filed October 29 was not the first attempt made by unions to compel OSHA to promulgate this type of safety standard. Over ten years ago, AFT and AFSCME petitioned OSHA to create an occupational safety and health standard that would protect healthcare workers from infectious diseases transmissible by contact, droplets, and the air (“Infectious Diseases Standard”). The initial petition was based on the negative consequences of infectious disease even prior to the current pandemic. Before COVID-19, infectious diseases caused about 1.7 million healthcare-associated infections (“HAIs”) each year. An HAI is an infection, often preventable, that a patient gets while receiving treatment for another condition. HAIs pose a safety risk because they can spread among patients and healthcare workers. These infections led to approximately 99,000 patient deaths and $20 billion in additional healthcare costs in the United States system. Based on the negative consequences highlighted in the initial petition, OSHA began its rulemaking process in 2010. In 2016, OSHA was still working toward completing an Infectious Diseases Standard with an expected completion date in 2017. However, when a new president took office and the administration changed in 2017, OSHA halted its rulemaking.

The current petition to the United States Court of Appeals for the Ninth Circuit argues that OSHA has a duty to issue an Infectious Diseases Standard because infectious diseases present significant risk of harm to healthcare workers and OSHA’s efforts to address the current pandemic have been insufficient. It also argues the court should compel OSHA to act due to the agency’s delay being unreasonable and unlawful.

The Arguments

OSHA’s Duty to Create Safety Regulations

OSHA is an administrative agency that is part of the United States Department of Labor. The agency’s purpose is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.” In addition to OSHA’s mission, the Occupational Safety and Health Act (OSH Act) compels OSHA to issue binding standards when there are significant health risks in America’s workplaces. Petitioners argue that OSHA determined the necessity of promulgating an Infectious Diseases Standard when it initiated rulemaking in 2010. Despite the need for such a standard, currently, OSHA has only one standard directly addressing workplace infectious diseases. The existing standard addresses only bloodborne pathogens. Petitioners argue this standard is insufficient because infectious diseases like MRSA, H1N1, SARS-CoV-2 (the virus that causes COVID-19), and measles are not bloodborne pathogens but instead spread via contact, droplets, or the air. Petitioners emphasize the importance of OSHA creating an Infectious Diseases Standard in light of the deadly COVID-19 pandemic, citing conservative estimates of 190,000 healthcare worker infections and more than 770 healthcare worker deaths in the United States.

Characterization of the Delay as Unreasonable and Unlawful

Petitioners argue that because OSHA began its rulemaking process for an Infectious Diseases Standard in 2010, the delay in issuing the standard has been unreasonable and unlawful. The petition contends that a decade-long delay is longer than any court has deemed reasonable. Petitioners also cite a case for precedent, Telecommunications Research & Action Center (“TRAC”) v. FCC., in which the court used factors including length of delay, absence of a reasonable timeline, and harm to health to determine reasonableness. Petitioners argue that a decade-long delay, in combination with the current pandemic, would certainly fail the balancing test set out in TRAC v. FCC., and thus be deemed unreasonable.

The Unions’ Request

The unions conclude their petition by asking the court to use its powers given to it by the Administrative Procedure Act to compel OSHA to end its delay in issuing an Infectious Diseases Standard. Petitioners ask the court to compel OSHA to issue a regulation within 90 days of a court order.

Implications of The Petition

If the court grants the petition and compels OSHA to issue a regulation, the regulation would be published in Title 29 of the Code of Federal Regulations and become a regulatory requirement serving as criteria for measuring whether employers are in compliance with OSH Act laws.