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Update Applicable to:
All employers with healthcare workers.

What happened?
On August 26. 2022, the D.C. Court of Appeals held that the Occupational Safety and Health Administration (OSHA) is not legally required to enforce its emergency temporary standard for the healthcare industry (Healthcare ETS), nor must it replace the Healthcare ETS with a permanent standard.

What are the details?
In National Nurses United, the D.C. Court of Appeals responded to a petition from healthcare unions for a writ of mandamus requiring OSHA to issue a permanent COVID-19 standard for the healthcare industry. The permanent standard should, petitioners argued, supersede the Healthcare ETS within 30 days. The petitioners urged the court to require OSHA to refrain from withdrawing the Healthcare ETS before promulgating a permanent standard and to continue to enforce the Healthcare ETS in the meantime.

The Healthcare ETS required healthcare employers to take precautionary measures to protect employees against COVID-19, including developing and implementing a COVID-19 plan for each workplace with policies and procedures to minimize the risk of transmission of COVID-19 for each employee (29 C.F.R. § 1910.502).

OSHA recognized that it would be unable to issue a permanent standard before its statutory deadline and announced its intent to withdraw most requirements of the Healthcare ETS in December 2021. In OSHA’s announcement, it stated that it would publish a notice in the Federal Register to implement the withdrawal. Following OSHA’s announcement but before any publication in the Federal Register, the healthcare unions filed a petition with the D.C. Court of Appeals, asking the court to require OSHA:

The court held that OSHA does not have a clear duty to issue a permanent standard. Although the agency must conduct a rulemaking proceeding to determine what standard should supersede the Healthcare ETS, it has the discretion to determine that no standard should be issued.

The court further held that it did not have jurisdiction to preclude OSHA from withdrawing the Healthcare ETS and that it could not require OSHA to continue enforcing the Healthcare ETS, as OSHA’s decision not to enforce the Healthcare ETS did not violate a clear duty to act. In re: National Nurses United at 7-8 (citing Thomas v. Holder, 750 F.3d 899, 904 (D.C. Cir. 2014) (explaining that “if the act [petitioners] seek to compel is discretionary,” then the writ cannot issue, “as government officials have no clear duty to perform such acts”)).

For more information, please see the links below:

OSHA’s Healthcare ETS

29 C.F.R. § 1910.502

Article

What do employers need to do?
Employers should review the links provided above and do their best to ensure the safety of their healthcare employees.

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This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.

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