In 2017, the Occupational Safety and Health Administration (OSHA) stopped progress on a workplace standard intended to protect healthcare professionals from exposure to infectious diseases. This allowed healthcare facilities to ignore basic workplace safety standards for diseases transmitted by contact, droplets, or air, leaving workers under-protected against infectious diseases like the flu, Legionnaires’ disease, or Ebola — or, tragically, the deadly coronavirus.

Despite COVID-19 infecting over 190,000 healthcare professionals, and killing over 700 as a result, the Trump administration has still refused to move forward with a long-delayed rulemaking that would have prepared frontline healthcare workers to fight this pandemic.

OSHA had started work on a safety and health standard on infectious diseases transmitted via contact, droplets, or air had been in 2009, when unions representing healthcare professionals petitioned the agency for regulations to address healthcare-associated infections during the H1N1 “Swine Flu” pandemic. The agency embarked on a multi-year rulemaking process, conducting stakeholder meetings, creating a proposed regulatory framework, and acknowledging the “long-standing infectious disease hazards” that workers in healthcare face.

As recently as 2016, OSHA planned to propose a rule in October 2017. Instead, when the Trump administration took office, OSHA shelved the rulemaking altogether.

Now, OSHA’s failure to move forward with the long-delayed standard has left millions of frontline healthcare professionals vulnerable to infections in the face of a surging pandemic. While the agency has established protections against bloodborne pathogens, requiring employers to take steps to protect health care workers from diseases transmitted by blood, like hepatitis and HIV, there is no legally enforceable standard that requires employers to protect workers from diseases spread by contact, droplets, or air — like COVID-19 and influenza.

Instead, OSHA has preferred to issue toothless guidance documents to address the occupational risks posed by the pandemic. As of October 8, the agency had received more than 9,000 COVID-19 related complaints alleging violations of the Occupational Safety and Health Act but has only issued a few dozen citations against employers. This not only hampers our nation’s response to a catastrophic pandemic, but also affects the personal lives of doctors, nurses, technicians, and other healthcare professionals and hospital workers trying to survive a high-risk environment while caring for COVID-19 patients.

Linda Adye-Whitish
Registered Nurse in Pierce County, WA

In the early weeks of COVID-19, we routinely treated patients without having ready access to masks or gowns and had no supply of N95 masks at all.

Adye-Whitish’s employer eventually provided N95 masks. But, by the time she was provided a mask that fit, she had already contracted COVID-19.I am certain,” she says, “that my exposure came from work.”

Six months after contracting COVID-19, Adye-Whitish is still experiencing symptoms — including heart palpitations, shortness of breath, “brain fog,” and a loss of taste and smell. She still doesn’t have access to a suitable N95 mask.

For the first time in my career I feel expendable and I am thinking of leaving the profession I love,” Adye-Whitish says. “My employer is unwilling or unable to follow known and understood measures for keeping healthcare workers like me safe.

On behalf of the AFTAFSCMEWSNA, and UNAC — unions collectively representing 500,000 healthcare professionals — we’ve filed suit against the Trump administration to compel OSHA to advance the rulemaking on an infectious diseases standard. This would require healthcare facilities like hospitals, clinics, nursing homes, school nurse offices, drug treatment programs, and similar workplaces to protect their employees from exposure to harmful infectious diseases.

OSHA, the Department of Labor, and Labor Secretary Eugene Scalia violated the Administrative Procedure Act and the Occupational Safety and Health Act by unreasonably delaying action on an infectious diseases standard. Plaintiffs in the case are the American Federation of Teachers, the American Federation of State, County and Municipal Employees, the Washington State Nurses Association, and the United Nurses Association of California.

The petition for mandamus was filed on October 26 in the U.S. Court of Appeals for the Ninth Circuit.

May 2009

Unions petition OSHA for an infectious diseases standard during the H1N1 influenza pandemic.

At the time, the CDC reported 5,000 cases and five deaths from H1N1, including 82 cases among healthcare workers. The petitions argued even then that OSHA’s evolving voluntary guidance was no substitute for the immediate imposition of a mandatory, legally enforceable, standard.

May 2010 - 2016

OSHA initiated and made progress on the rulemaking.

In response to the petitions, OSHA began the rulemaking process for an infectious diseases standard to “mitigate the risk of occupationally-acquired infectious diseases.” Progress continued, with stakeholder meetings held in 2011, a proposed regulatory framework in mid-2012, and an advisory review panel in 2014. The Department of Labor’s 2016 Regulatory Plan listed the expected Notice of Proposed Rulemaking date for the standard as October 2017.

January 2017

The Trump administration abandoned the infectious diseases standard.

Instead of issuing a Notice of Proposed Rulemaking for the infectious diseases standard, the administration shelved the matter, moving it to a list of “Long-Term Actions,” where it has sat ever since.

2020

A deadly airborne disease with no known cure shows no signs of slowing as flu season approaches.

Over 190,000 healthcare workers have been infected with COVID-19 since the pandemic started. With no known cure or vaccine available yet, healthcare professionals must contend with increasing COVID-19 rates with limited protections in their high-risk workplaces.

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October 2020

We filed suit to ensure that OSHA meets an urgent, ever-present need for workplace protections from infectious diseases.

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Jeffrey Dubner

Managing Senior Counsel

Challenging unlawful executive branch actions through a wide range of legal strategies

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Michael Martinez

Managing Senior Counsel

Former DOJ trial attorney challenging unlawful executive branch actions

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