It may seem like a lifetime ago, but employers may recall that in late 2021, the federal Occupational Safety and Health Administration (OSHA) withdrew its health care emergency temporary standard (ETS) for COVID-19, stating that the agency had not had sufficient time to develop a permanent rule by the expiration of the six-month ETS timeframe. Last week, the U.S. Court of Appeals for the District of Columbia Circuit rejected an attempt by a nurses’ union to require OSHA to issue a permanent standard or reissue the health care ETS.

In re: National Nurses United involved a request by the union for a writ of mandamus that would force OSHA to take action based on the agency’s duty to protect workers from serious threats to their health. While confirming OSHA’s obligations, the D.C. Circuit concluded that issuance of the ETS does not compel the agency to promulgate a permanent standard. OSHA has the discretion to review the risk presented to employees and determine the appropriate response. The court also concluded that it does not have the statutory authority to require OSHA to issue an ETS.

This decision does not close the door on a permanent COVID-19 standard for health care employers. OSHA has indicated that it is reviewing both a specific COVID-19 rule, as well as a broader infectious disease standard that would cover COVID-19 in addition to other airborne diseases that could be spread in a health care setting. In the past, development of these rules has taken years to accomplish. This decision indicates that federal courts will not intervene to hold OSHA to a faster timetable.

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