Workers' Compensation: Unions Sue Trump Admin for Shelving Standard That Would Protect America’s Healthcare Workers From Exposure to Infectious Diseases

Today, the American Federation of Teachers (AFT), the American Federation of State, County and Municipal Employees (AFSCME), the Washington State Nurses Association (WSNA), and the United Nurses Association of California/Union of Health Care Professionals (UNAC/UHCP) sued Labor Secretary Eugene Scalia and the Occupational Safety and Health Administration (OSHA) for unlawfully delaying rulemaking on an occupational standard to protect healthcare workers from infectious diseases transmitted by contact, droplets, or air — like influenza, COVID-19, and Ebola. In 2017, the Trump administration tabled work on an Infectious Diseases Standard. It has refused to move forward with the standard amid a catastrophic pandemic — and despite the pleas of healthcare professionals. The administration’s unreasonable delay violates the Administrative Procedure Act and the Occupational Safety and Health Act (OSH Act).

In the filing, the unions, represented by Democracy Forward, petitioned for a writ of mandamus compelling OSHA to advance rulemaking on an Infectious Diseases Standard, which would require healthcare employers who run hospitals, clinics, school nurse offices, drug treatment programs, and similar workplaces to protect their employees from exposure to harmful infectious diseases.

“In times of national crisis, the government’s job is to protect people — and in the case of protecting workers on the front line of this pandemic, the federal government has failed,” said Randi Weingarten, President of the American Federation of Teachers. “Doctors, nurses, respiratory techs, and other healthcare professionals have been treating COVID-19 patients for the better part of a year without basic workplace protections, including adequate PPE, robust testing, and, most importantly, an Infectious Diseases Standard that would require employers to establish a comprehensive infection control program to protect frontline workers who are facing daily exposure. OSHA has failed to regulate employers, which in turn have failed to protect the people caring for COVID-19 patients. As a result, healthcare worker infection rates remain troublingly high. This immoral treatment of the healthcare heroes carrying us through this crisis must end, and both OSHA and employers must be held accountable to make hospitals safe for the people who work there.”

“Every day, public service workers in health care and related settings go above and beyond the call of duty, putting themselves and their families in harm’s way to keep their communities safe, healthy, and strong,” said AFSCME President Lee Saunders. “For their commitment to this work, stepping up during a pandemic, and battling our most infectious and deadly diseases, they and their patients deserve to know that there are science-based protocols and workplace protections in place that keep them as safe as possible on the job. We cannot simply thank our nurses, behavioral health workers, EMS workers, corrections officers, and other front-line heroes. We need action to ensure their health and safety, so that they can ensure ours.”

“Those that provide healthcare to the community should never have to resort to borrowing, hoarding, or rationing PPE to protect workers and patients,” said Denise Duncan, a registered nurse and President of UNAC/UHCP. “Based on science, standards need to be established for creating, distributing, and storing PPE. Oversight is necessary to protect caregivers from expired or poor quality equipment, and healthcare workers need to feel safe in the workplace and know that the healthcare system will protect them and the public alike. Without an Infectious Disease Standard, healthcare systems may be left to their own devices and varying practices that leave our workforce unsafe.”

“From the start, the Trump administration abdicated its responsibility to keep healthcare workers — and the communities they serve — safe,” said Democracy Forward Legal Director Sean Lev. “The administration’s unlawful decision to shelve proposed protections for healthcare professionals has recklessly exposed them to deadly infectious diseases like COVID-19. The decision betrays a dangerous disregard for the law and the health and safety of America’s frontline workers.”

At present, OSHA has no occupational safety and health standard designed to protect against most infectious diseases. While the agency’s Bloodborne Pathogens Standard requires 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.

The lack of an Infectious Diseases Standard puts millions of healthcare professionals — including the more than 150,000 nurses and health professionals represented by AFT and the more than 350,000 represented by AFSCME — at high risk of exposure. Nationwide, more than 190,000 healthcare professionals have been infected with COVID-19, and more than 750 have died, according to the CDC. Even before the pandemic, though, there were 1.7 million healthcare-associated infections each year — from viruses like influenza and superbugs like MRSA — that pose a risk to health care workers.

In one of nine written declarations in support of the litigation, AFSCME’s Director of the Department of Research and Collective Bargaining, Dalia Thornton, explains the importance of enforceable standards. “When we deal with health and safety issues where statutes or regulations compel employers to meet a certain standard,” Thornton states, “we are usually able to convince employers to comply with the law and take the necessary steps to protect our members’ health. …. But when we can only point to non-binding guidance, it is far harder to improve an employer’s practices.”

In another declaration, Linda Adye-Whitish, a registered emergency room nurse at a hospital in Pierce County, Washington, describes how the lack of a standard has personally affected her:

“In the early weeks of COVID-19,” Adye-Whitish says, “we routinely treated patients without having ready access to masks or gowns and had no supply of N95 masks at all.”
Adye-Whitish “resorted to … [her] community message board to get N95 masks donated” when her employer failed to provide surgical-grade masks. But, by the time she was provided a mask that fit, it was too late. She tested positive for COVID-19.
More than six months later, Adye-Whitish still has 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,” she says, “I feel expendable and I am thinking of leaving the profession I love. My employer is unwilling or unable to follow known and understood measures for keeping healthcare workers like me safe.”

Before the Trump administration put OSHA’s Infectious Diseases Standard on the backburner, OSHA was on track to issue the standard. The agency had spent nearly a decade considering the matter after AFT, AFSCME, and affiliated labor unions petitioned for the standard in May 2009. The agency sought information from stakeholders and experts, conducted stakeholder meetings, created a proposed regulatory framework, and acknowledged that “[e]mployees in health care and other high-risk environments face long-standing infectious disease hazards.”

Instead of moving forward with an Infectious Diseases Standard, OSHA has published toothless guidance documents to address the occupational risks posed by the pandemic. OSHA has received over 9,000 COVID-19-related complaints alleging violations of the OSH Act but has issued just a few dozen citations.

The lawsuit was filed on October 29 in the U.S. Court of Appeals for the Ninth Circuit. Read the petition for mandamus, the full appendix, and the nine declarations from healthcare professionals and union leadership.

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Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters). For over 4 decades the Law Offices of Jon L Gelman 1.973.696.7900 jon@gelmans.com has been representing injured workers and their families who have suffered occupational accidents and illnesses.