The American Federation of Teachers (AFT), American Federation of State, County and Municipal Employees (AFSCME), Washington State Nurses Association (WSNA) and United Nurses Association of California/Union of Health Care Professionals (UNAC/UHCP) petitioned the Ninth Circuit Court of Appeals to issue a writ of mandamus for the Occupational Safety and Health Administration (OSHA) to complete its occupational safety and health standard for infectious diseases, for which the organizations first petitioned more than 10 years ago. The court is authorized to issue a writ of mandamus under the All Writs Act (AWA) and the Administrative Procedure Act (APA).
The petitioners explained that, more than a decade ago, during the 2009 H1N1 influenza pandemic, they argued OSHA should create an infectious diseases standard to “protect health care workers from the risks of infectious diseases transmissible by non-bloodborne routes, such as by contact, droplets and the air,” stating that even before COVID-19, each year brings 1.7 million health care-related infections in the United States. They said OSHA currently has one standard for workplace infectious diseases, but it only covers those that are bloodborne. In 2016, OSHA projected that its standard for infectious diseases would be completed in 2017, but an administrative change delayed completion of the standard and delegated it to the list of “Long-Term Actions,” according to the petition.
OSHA’s shelving of the standard was “unreasonable and unlawful,” according to the petition, which cited the Occupational Safety and Health Act (OSH Act) that compels OSHA to create standards when “significant health risks exist in America’s workplaces” and based the precedent set by Telecommunications Research & Action Center (TRAC) v. FCC and the determination of reasonableness by In re A Cmty. Voice, “due to the length of delay, absence of any reasonable timeline and harm to health.”
The petitioners cited declarations by individuals at an increased risk of contracting an infectious disease and that the risk has not been mitigated as it should without an infectious disease standard; they claimed 13 AFT members have died of COVID-19. “In the absence of a binding, enforceable standard, many healthcare workplaces do not maintain appropriate infection control practices to minimize the risk” of infectious disease, according to the petition.
Along with issuing the writ of mandamus, the petitioners requested that the court require OSHA to issue a notice of proposed rulemaking (NPRM) for the infectious disease standard within 90 days of the writ of mandamus, making the standard a priority and expediting its completion. According to the petition, doing so would “reduce the risks to the Unions’ members from workplace transmission of these diseases, as well as reduce the resources that the Unions have had to divert to investigating complaints and filing charges against employers.”
The petitioners invoked the OSH Act to point out OSHA’s responsibility “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” by setting “the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity.”
The Counsel for Petitioners is Michael C. Martinez of the Democracy Forward Foundation.