WASHINGTON —The National Nurses United and the AFL-CIO are disappointed by another federal appellate court ruling bouncing their demand the government permanently force firms to protect workers against the coronavirus.
On August 26, the U.S. Court of Appeals for D.C., said it lacked the jurisdiction to force the Occupational Safety and Health Administration (OSHA) to move.
And Judge Neomi Rao, a 2019 Trump appointee with a Republican and right-wing pedigree, said NNU and its allies wanted “a preordained result”—a permanent OSHA standard forcing health care firms to protect workers against the virus—within 30 days.
NNU also wanted OSHA to reinstate its emergency temporary standard, suspended last December after another D.C. Circuit panel tossed it. OSHA said then it would work on creating and announcing a permanent standard. Judge Rao sneeringly slammed both requests.
We can’t force that, Rao wrote for herself and two panel colleagues. One of them, the court’s chief judge, David Sentelle, was a Republican appointee, like her.
NNU sought a writ of mandamus—Latin for a “mandate”—to get OSHA to act. Rao said such mandates are “reserved only for transparent violations of a clear duty to act.” OSHA’s not doing that, Rao declared. Instead, she opined, OSHA’s following its usual rulemaking drill. She ducked the point that such formal procedures often take years, due to corporate opposition.
Besides, OSHA can still come to the conclusion that it doesn’t need a permanent standard to protect workers against the virus, the judge said. “And enforcement of the healthcare ETS is squarely within OSHA’s prosecutorial discretion,” she added.
Rao’s ruling upset both NNU, the lead union in both cases, and the AFL-CIO.
“This wasn’t the result we were hoping for–and we aren’t giving up, “ NNU Assistant Director Of Nursing Michelle Mahon, RN, wrote in an e-mailed request for petition signatures demanding OSHA issue a permanent anti-virus standard.
“The pandemic is still ongoing, with nurses and other health care workers on the frontlines. As of today, nearly 500 registered nurses and more than 4,800 other health care workers have died due to Covid-19, and many more are suffering from long Covid.
“Without the protections provided by a permanent standard, nurses and other health care workers are in grave danger. We have to increase the pressure on OSHA to act now: will you add your name to our urgent petition demanding OSHA pass a permanent standard?” she asked. It’s at act.nnu.org.
“To safely care for us and our loved ones, nurses need to have personal protective equipment, proper testing and isolation practices, and infection control protocols in place. OSHA’s permanent standard would guarantee these protections, so we have to make them hear us,” Mahon said.
“Leaving discretion with the agency to” issue an anti-virus standard” at a time when U.S. health care worker deaths from Covid-19 are at the highest point since early 2021” disappointed AFL-CIO President Liz Shuler. “OSHA should swiftly complete and issue the permanent rule it announced in December when OSHA stopped enforcing emergency protections, and return to enforcing emergency protections,” she added.
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