9th Circ. Pauses Unions' Suit On OSHA Infectious Disease Reg

By Tim Ryan
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Law360 (February 22, 2021, 2:02 PM EST) -- The Ninth Circuit paused a suit by nurses' and teachers' unions seeking to force the Department of Labor to develop a rule to protect health care workers from certain infectious diseases after the agency said it will make crafting the rule a priority.

The order was issued Friday, three days after the unions and the DOL's Occupational Safety and Health Administration asked the appeals court on to pause the suit because the agency "intends to prioritize the development of an infectious diseases standard for the health care sector."

In a joint statement Monday, 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 said the agency's plan to prioritize the standard is welcome news. The plan is also a departure from the approach to the issue by former President Donald Trump's administration, the unions said.

"Health care professionals across the nation are working tirelessly in the fight against COVID-19," the unions said, referring to the respiratory disease caused by the novel coronavirus. "They should be able to rest assured that their employers are required to take steps to protect them from exposure to infectious diseases like COVID-19, the flu, Ebola and more."

The unions sued OSHA in October, alleging the Trump administration unlawfully delayed an effort to develop enforceable rules for health care industry employers to follow to protect their workers from exposure to infectious diseases, such as influenza or COVID-19, that spread through the air, respiratory droplets or contact. The lawsuit sought to force OSHA to issue a standard, accusing the agency of failing its duty of protecting workers from workplace hazards.

After facing calls from workers' advocates during the H1N1 pandemic, OSHA had started work on an infectious disease standard in the mid-2010s. That plan was still in the works late in former President Barack Obama's administration but was never formalized before the Trump administration shelved it in 2017, according to the unions' petition.

In the filing last week, the unions and agency were hopeful the rule might have a second chance, pointing specifically to an executive order that President Joe Biden issued on Jan. 21 directing OSHA to consider adopting a temporary emergency standard for businesses to follow during the pandemic. The order gave the agency a March 15 deadline to issue the standard if it determines one is necessary, according to the filing.

The unions and agency said a pause in the litigation was warranted as OSHA reevaluated its regulatory priorities in light of the change in administration.

"Given … the potential for resolution of this case without the need for a writ of mandamus from this court, the parties believe that it would conserve the resources of both the court and the parties to remove the case from the court's argument calendar and place the case in abeyance while the agency reassesses its position," the parties said in the filing.

OSHA will update the court within 60 days on its plans to develop a new infectious diseases standard, according to the filing. The case had been scheduled for oral argument on March 3. 

Michael Martinez, managing senior counsel at the Democracy Forward Foundation, who represents the unions, said Monday that his team will continue communicating with OSHA during the pause in the litigation to monitor the progress of a new standard. While there have been positive signs the agency will move forward on the regulation, Martinez told Law360, the unions will ultimately want to see a firm commitment, such as a notice of proposed rulemaking.

He said the temporary emergency standard mentioned in the Biden order would be welcome but not sufficient because it would be limited to COVID-19.

A representative of the Department of Labor did not immediately comment when reached Monday.

The unions are represented by Michael Martinez, Jeffrey Dubner and Sean Lev of the Democracy Forward Foundation.

The Department of Labor and OSHA are represented in house by Joseph Gilliland.

The case is American Federation of Teachers et al. v. Occupational Safety and Health Administration et al., case number 20-73203, in the U.S. Court of Appeals for the Ninth Circuit.

--Editing by Vincent Sherry. 

For a reprint of this article, please contact reprints@law360.com.

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