Appeals Court Rejects Effort to Compel OSHA to Retain Healthcare ETS


On Friday, an Appellate Court rejected the UNIONS' effort, including the National Nurses, United, to compel the Occupational Safety and Health Administration (OSHA) to retain the Healthcare Emergency Temporary Standard (ETS). 

The court reasoned that it lacked jurisdiction under the ALL Writs Act. It determined that it could not order OSHA to promulgate a permanent standard because, after the rule-making process, OSHA is permitted to determine that knows Standard should issue. 

Presidential Directive

The action arose out of a President Biden directive to OSHA shortly after his inauguration to "consider whether any emergency temporary standard on COVID-19…are necessary.” OSHA subsequently determined that exposure to COVID-19 “presents a grave danger" to healthcare workers, and the ETS was necessary to protect them.  

SCOTUS Denial of Vaccine Mandate

Soon after OSHA announced that strategy, it promulgated an ETS mandating their employers of all large employers to get either vaccinated against COVID-19 or tested weekly. The Supreme Court of the United States then held that the vaccine ETS had exceeded OSHA's statutory authority. Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., 142 S. Ct. 661 (2022). 


Shortly thereafter, OSHA announced its intention to re-withdraw the healthcare ETS claiming that it was only able to complete the necessary notice and comment procedures within the six-month timeframe. The UNIONS petition for a writ of mandamus compelling OSHA to issue a permanent standard superseding the healthcare ETS, refrain from withdrawing the healthcare ETS, and continue to enforce the healthcare ETS. 

The Appellate Court ruled: 

“…OSHA has no clear duty to issue a permanent standard because it has a clear duty to undertake a notice and comment process, and that process may result in a determination that no permanent standard is necessary. “ 

“In sum, while OSHA has a clear duty to follow the notice and comment process to determine what standard, if any, should supersede the Healthcare ETS, it has discretion to determine that no standard should issue. The Unions petition for more than just the expeditious completion of OSHA’s process, they ask this court to compel OSHA to promulgate a permanent standard. OSHA has no clear duty to issue a permanent standard, so we cannot compel the agency to do so. “ 

“Writs of mandamus are reserved for “the ordering of a precise, definite act about which an official ha[s] no discretion whatever.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 63 (2004) (cleaned up). We cannot compel OSHA to enforce the Healthcare ETS because its discretion over which standards to enforce and when is the antithesis of a clear duty to act.“ 

Failure at the Federal Level

At the Federal level, there has been little effort to achieve workplace safety standards that will achieve protection for workers from infectious diseases such as COVID-19. The courts have stymied the efforts of the Biden Administration to limit the transmission of infectious diseases. Pending in the Eleventh Circuit Court of Appeals is the issue of the Federal masking mandate on interstate transportation and the limitations on the authority of the Center for Disease Control and Prevention. 

As COVID-19 transmission remains seriously elevated with the highly contagious BA.5 variant and the emergence of Monkeypox and Polio on the horizon, the future looks bleak for the prevention and containment of these infectious diseases in the workplace. Congress must act on these issues and provide Federal funding for future efforts, including injectable and nasal vacations, as well as research.  

In re National Nurses United, et al. On Petition For a Writ of Mandamus

Docket 22-1002 (CT. App. DC 2022) Decided August 26, 2022 

By Jon L. Gelman

Courtesy of Workers' Compensation

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