The federal government can issue a permanent COVID-19 healthcare standard on its own timeline after an appellate court ruled against a group of unions hoping to expedite the process.
A three-judge panel from the US Court of Appeals for the District of Columbia Circuit ruled Friday that it does not have the jurisdiction to set Occupational Health & Safety Administration enforcement policies or dictate a timeline for enacting them.
“OSHA has no clear duty to issue a permanent standard, so we cannot compel the agency to do so,” the court wrote in its decision. “OSHA’s determination of whether, when and how vigorously to enforce a particular standard is committed to the agency’s discretion and not subject to judicial review.”
In a July 25 filing with the appellate court, OSHA indicated that it was on track to complete a final healthcare standard in September or October. But the agency stated that changes in science or the course of the pandemic might require a reevaluation of policy decisions that could “significantly change this timeline.”
Several union groups — National Nurses United, the New York State Nurses Association, the Pennsylvania Association of Nurses and Allied Professionals, the AFL-CIO, the American Federation of Teachers, and the American Federal of State, County and Municipal Employees — sued the agency Jan. 5 after it allowed the COVID-19 healthcare emergency temporary standard to lapse in December 2021. The suit also asked the court to enforce the healthcare ETS in the meantime.
OSHA initially announced a COVID-19 healthcare ETS in June 2021. It required assisted living communities and other healthcare settings to conduct hazard assessments and have written plans to mitigate the spread of the coronavirus; called on healthcare employers to provide some employees with N95 respirators and other personal protective equipment; and included social distancing, employee screening, and cleaning and disinfecting protocols.
The agency withdrew the non-recordkeeping parts of the standard in December, however, after failing to complete work on a final rule within the timeframe established by the Occupational Safety and Health Act of 1970.
The agency solicited comments on a proposed final rule released in March that it said will protect assisted living and other healthcare workers from exposure to COVID-19 in the workplace.
Senior living industry leaders have filed their opposition to the broad requirements in the proposed final rule, calling it “overly prescriptive” and confusing. Argentum has argued that assisted living communities should be exempt from the COVID-19 healthcare standard requirements, questioning the applicability of the standard to senior living. The American Seniors Housing Association, LeadingAge and National Center for Assisted Living also submitted comments against the proposed rule.
Senior living associations also testified about the proposed rule in April.
