On Tuesday, a case was filed in the Western District of Texas by Tenet Healthcare Corporation against the Occupational Safety and Health Administration (OSHA) and the Secretary of Labor. The case is regarding an attempt to inspect the records of The Hospitals of Providence’s Transmountain location for compliance with COVID-19 protocols.
OSHA protects the safety of workers in their place of employment. In order for OSHA to inspect a place of employment and be in compliance with Fourth Amendment protections regarding warrants, OSHA is granted specific authority for specific types of authority.
The plaintiff states that an OSHA inspector tried to obtain access to the THOP Transmountain location for the purposes of inspection, however the only authorities that the inspector cited for the inspection was National Emphasis Program, Directive 2021-03 (CPL 03) (NEP), rooted in the July 7, 2021 Emergency Temporary Standard (ETS) that expired on December 27, 2021.
The plaintiff noted that the Emergency Temporary Standard had expired, and that no permanent rule had been issued in compliance with the Administrative Procedures Act. The plaintiff also noted that in the absence of the ETS, that the facility was in compliance with the CMS Vaccination Standards and that the facility also currently has no COVID-19 cases.
Plaintiff seeks a temporary restraining order enjoining the inspection until a permanent rule is issued, noting that permitting the inspection now would be in the absence of a valid rule as well as expose the hospital to liabilities including ten-fold damages should penalties by enacted. Plaintiff is represented by Ogletree, Deakins, Nash, Smoak & Stewart.
