PPE Shortage Caused by Gov’t Inaction, Lawsuit Says

Federal health and homeland security agencies’ failure to act caused a massive and ongoing PPE shortage during the coronavirus outbreak, says a new lawsuit filed by labor unions and advocates.

According to the lawsuit, government agencies, including the U.S. Department of Health and Human Services and Department of Homeland Security, had power under the federal Defense Production Act to increase the production of personal protective equipment (PPE) necessary for essential workers to stem the tide of COVID-19 as it arose this spring. However, the plaintiffs say, these agencies continue to refuse to address the critical need for this equipment.

“This case challenges the federal government’s refusal to address a crucial and ongoing crisis striking the country: the grave shortage of personal protective equipment (‘PPE’) for the nation’s essential workers during the 2019 novel coronavirus (‘COVID-19’) pandemic,” explains the complaint that was filed by 10 workers’ unions, as well as the Center for Biological Diversity and Friends of the Earth.

The plaintiffs say they need to file this lawsuit to combat government inaction. They point out that two months ago, they submitted an emergency rule-making petition to the secretaries of the Departments of Health and Human Services and Homeland Security, Alex Azar and Chad Wolf, respectively.

However, the agencies have “ignored the petition.”

The lawsuit is asking for a court order requiring the government agencies to invoke the Defense Production Act to assess the PPE shortage and ensure supplies are manufactured and provided to essential workers.

According to the plaintiffs, despite being months into the pandemic, workers are still in short supply of “reusable and N95 respirators, protective garments, and ventilators.”

“A significant portion of those who have died from and contracted the coronavirus are classified as ‘essential’ workers, a lucidly precise term for the people who have shouldered the country’s survival during this public health catastrophe,” point out the plaintiffs whose unions represent many of these workers. “Since the pandemic’s start, the country’s essential workers have been disproportionately exposed to and impacted by COVID19.”

According to the complaint, the United States is now the epicenter of the coronavirus outbreak and the number of infections has only risen since the plaintiffs’ petition was submitted.

Allegedly, one in five of those who have died of COVID-19 reside in the U.S.

“The nation now has over 7.5 million COVID-19 cases, and the rate of infection continues to rapidly swell due to the premature opening of state economies, major workplace outbreaks, and the failure to widely enforce social distancing and mask-wearing public health measures,” the lawsuit asserts, noting that experts say the numbers will only get worse as the ongoing pandemic combines with winter cold and flu seasons.

The plaintiffs say the essential workers, including frontline healthcare workers, along with food production, factory and transportation workers, have been denied the PPE they need to protect themselves as coronavirus surges across the country.

“Studies show that healthcare workers alone make up 10-20 percent of all coronavirus infections,” the complaint points out. “Essential workers are also disproportionately Black, Latinx, Asian and from other communities of color that have disproportionately suffered higher rates of fatalities and infections than their white counterparts.”

The lawsuit alleges federal agencies have had the power to address the PPE shortage since March 2020, when the coronavirus pandemic was declared a national emergency by the president.

Health and Human Services and Homeland Security were further delegated the power to begin rapid manufacture and distribution of PPE under subsequent executive orders, the plaintiffs say, but have thus far failed to do so even as infection rates accelerate across the nation.

“Currently, the White House and Capitol Hill are also experiencing a COVID-19 outbreak, with over 150 essential and other workers testing or presumed positive for the lethal coronavirus,” the complaint states. “In light of this compressed time scale and outsized health risks to essential workers deprived of adequate PPE, the Departments’ failure to respond to the Emergency PPE Petition constitutes unreasonable delay.”

According to the lawsuit, this failure to address the PPE shortage through the plaintiffs’ petition is a violation of the federal Administrative Procedures Act and the Departments of Health and Human Services and Homeland Security should be directed to act.

Are you an essential worker? Have you experienced a PPE shortage at work? We want to hear about your experience. Tell us in the comment section below.

The plaintiffs are represented by Jean Su and Howard Crystal of the Center for Biological Diversity.

The PPE Shortage Lawsuit is Amalgamated Transit Union, et al. v. Azar, et al., Case No. 1:20-cv-02876, in the U.S. District Court for the District of Columbia.

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