Healthcare Workers Sue OSHA Over Alleged COVID-19 Protection Failures

Unions for healthcare workers, teachers, and government employees have filed a lawsuit accusing the Occupational Safety and Health Administration (OSHA) of failing in its duty to keep workers safe during the coronavirus pandemic.

The unions — the American Federation of Teachers (AFT), American Federation of State, County, and Municipal Employees (AFSCME), Washington State Nurses Association, and United Nurses Association of California —  say OSHA had a responsibility to continue a rulemaking process begun several years ago that would have resulted in the issuance of a response standard for infectious diseases.

According to the lawsuit, the AFT and AFSCME petitioned OSHA over 10 years ago for a standard to protect healthcare workers from risks associated with infectious diseases that can be transmitted via contact, droplets, and other “non-bloodborne routes.”

Such infections are often dangerous or fatal, the lawsuit says. OSHA acknowledged healthcare workers’ risk and began its rulemaking process for a standard.

The process was progressing with a targeted completion date of 2017, when, after a change in administration, the project was shelved, the lawsuit says. OSHA has since “refused to carry out its statutory obligations — even in the midst of the deadliest pandemic in a century, which conservative estimates show has infected over 190,000 healthcare workers in the United States and claimed more than 770 of their lives.”

The unions’ petition calls the 10-year delay “unreasonable and unlawful.”

The petitioners also say OSHA’s response to the coronavirus pandemic has been insufficient.

According to the lawsuit, OSHA recognized back in 2014 that its current “‘non-mandatory’ infection control guidelines were ‘not sufficient to adequately reduce the risk of transmission of infectious agents to workers.’” 

However, the agency has responded to COVID-19 issuing “non-mandatory guidance, alerts and response plans and citing the General Duty Clause of the OSH Act,” all of which fall far short of eliminating workers’ risks, thereby not meeting its obligations, the lawsuit maintains.

Before shelving its work on the response standard, OSHA had compiled information concluding healthcare workers aren’t safe from infectious diseases and a standard is required, the unions argue.

In these records, OSHA allegedly acknowledged the risk to healthcare workers has “been known and documented for some time” and that peer-reviewed publications “demonstrate a well-recognized risk of occupational exposure to infectious agents.” 

The evidence showed “that there is a sustained prevalence of work-related infectious diseases in healthcare, laboratory, and associated work settings” due to transmission via non-bloodborne routes, the lawsuit said.

OSHA’s data also allegedly showed healthcare workers are at risk of exposure “during the early stages of the emergence of novel infections agents or novel strains of known infectious agents,” such as SARS or H1N1.

This exposure can potentially lead to soft tissue and skin infections, norovirus, pertussis, tuberculosis, and other illnesses.

The information concluded existing non-mandatory guidelines failed to sufficiently reduce healthcare workers’ risk.

The unions argue the risk has “come into even sharper relief” during the coronavirus pandemic.

According to the lawsuit, nearly 9 million people in the U.S. have contracted COVID-19 — and more than 225,000 people have died of it in the U.S.

A significant portion of those infections and deaths are healthcare workers, the lawsuit argues, citing Centers for Disease Control and Prevention (CDC) data indicating more than 190,000 COVID-19 infections and 770 deaths among healthcare workers. A nongovernmental study found even higher figures.

“The conclusion is clear: as with other infectious diseases, healthcare workers are at particularly high risk of COVID-19 infection,” the unions argue.

AFT president Randi Weingarten said in times of national crisis, it’s the federal government’s job to protect people, and it has failed.

“OSHA has failed to regulate employers, which in turn have failed to protect the people caring for COVID-19 patients” Weingargten said in a statement on the organization’s website. “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.”

This isn’t’ the first time OSHA has faced other legal action over its pandemic response.

According to The Washington Post, the AFL-CIO filed a similar lawsuit that was dismissed by a judge over the summer. Another ongoing lawsuit filed by meatpacking workers claims OSHA’s inaction has endangered them.

The healthcare workers unions and other petitioners are asking the Court to compel OSHA to issue a notice of proposed rulemaking within 90 days.

Do you think OSHA failed in its responsibility to keep healthcare workers safe? Let us know your thoughts in the comments.

The petitioners are represented by Michael C. Martinez, Jeffrey B. Dubner and Sean A. Lev of the Democracy Forward Foundation.

The Healthcare Workers COVID-19 OSHA Lawsuit is In re: American Federation of Teachers, et al. v. Occupational Safety and Health Administration, et al., Case No. unknown, in the U.S. Court of Appeals for the 9th Circuit.

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