The Occupational Safety and Health Administration (OSHA) is not legally required to enforce its emergency temporary standard for the healthcare industry (Healthcare ETS), nor must it replace the Healthcare ETS with a permanent standard. The D.C. Court of Appeals held on August 26 that OSHA does not have a clear duty to issue a permanent standard to replace the Healthcare ETS. In re: National Nurses United, et al., D.C. Circ., 22-1002, Doc. No. 1960989 (Aug. 26, 2022). The court’s decision follows OSHA’s announcement that it would be withdrawing most provisions of the Healthcare ETS and OSHA’s withdrawal of its COVID-19 Vaccination and Testing Emergency Temporary Standard, which required the majority of private employers to mandate COVID-19 vaccination or require regular testing. Beyond the log and reporting provisions in the Healthcare ETS, employers face no temporary requirements specific to COVID-19.

In National Nurses United, the D.C. Court of Appeals responded to a petition from healthcare unions for a writ of mandamus requiring OSHA to issue a permanent COVID-19 standard for the healthcare industry. The permanent standard should, petitioners argued, supersede the Healthcare ETS within 30 days. The petitioners urged the court to require OSHA to refrain from withdrawing the Healthcare ETS before promulgating a permanent standard, and to continue to enforce the Healthcare ETS in the meantime.

The Healthcare ETS required healthcare employers to take precautionary measures to protect employees against COVID-19, including developing and implementing a COVID-19 plan for each workplace with policies and procedures to minimize the risk of transmission of COVID-19 for each employee. 29 C.F.R. § 1910.502. Our prior alert regarding the Healthcare ETS is available here.

OSHA recognized that it would be unable to issue a permanent standard before its statutory deadline and announced its intent to withdraw most requirements of the Healthcare ETS in December 2021. In OSHA’s announcement, it stated that it would publish a notice in the Federal Register to implement the withdrawal. Following OSHA’s announcement but before any publication in the Federal Register, the healthcare unions filed a petition with the D.C. Court of Appeals, asking the court to require OSHA:

• to issue a permanent standard superseding the Healthcare ETS within 30 days;

• to refrain from withdrawing the Healthcare ETS until it promulgates a permanent standard; and

• to continue enforcing the Healthcare ETS (the court noted in its decision that OSHA had not yet published its withdrawal but conceded at oral argument that it is no longer enforcing the ETS).

The court held that OSHA does not have a clear duty to issue a permanent standard. Although the agency must conduct a rulemaking proceeding to determine what standard should supersede the Healthcare ETS, it has the discretion to determine that no standard should be issued. The court further held that it did not have jurisdiction to preclude OSHA from withdrawing the Healthcare ETS, and that it could not require OSHA to continue enforcing the Healthcare ETS, as OSHA’s decision not to enforce the Healthcare ETS did not violate a clear duty to act. In re: National Nurses United at 7-8 (citing Thomas v. Holder, 750 F.3d 899, 904 (D.C. Cir. 2014) (explaining that “if the act [petitioners] seek to compel is discretionary,” then the writ cannot issue, “as government officials have no clear duty to perform such acts”).).

What Happens Next

OSHA may still issue a permanent standard for the healthcare industry before the end of the year. Last year, OSHA opened a rulemaking docket seeking public comment to develop a final standard. In the meantime, and as forecasted in our prior alerts, employers should expect an increased emphasis on enforcement of OSHA’s permanent standards and the General Duty Clause.