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Health Workers Sue Trump Labor Secretary, OSHA Over 'Unconscionable Delay' of Protections Against Infectious Disease

The Trump administration has refused to resume work on new federal regulations—tabled in 2017—despite the coronavirus pandemic.

Certified registered nurses Kimberly Scheider, left, and Debbie Jessell, right, walk up to a patient's car before starting a Covid-19 test at Penn State Health St. Joseph on March 27, 2020. (Photo: Ben Hasty/MediaNews Group/Reading Eagle via Getty Images)

Certified registered nurses Kimberly Scheider, left, and Debbie Jessell, right, walk up to a patient's car before starting a Covid-19 test at Penn State Health St. Joseph on March 27, 2020. (Photo: Ben Hasty/MediaNews Group/Reading Eagle via Getty Images)

After months of healthcare professionals battling—as well as contracting and dying from—Covid-19, a coalition of labor unions on Thursday sued the U.S. Labor Secretary and the federal workplace safety agency over the "unconscionable delay" in issuing strong protections from infectious diseases for frontline workers.

"Doctors, nurses, respiratory techs, and other healthcare professionals have been treating Covid-19 patients for the better part of a year without basic workplace protections."
—Randi Weingarten, AFT

The lawsuit (pdf) against Labor Secretary Eugene Scalia and the Occupational Safety and Health Administration (OSHA) was filed in the U.S. Court of Appeals for the 9th Circuit and comes amid alarm over the Trump administration's inadequate efforts to rein in and provide relief from the coronavirus pandemic.

The unions behind the case are the American Federation of Teachers (AFT), the American Federation of State, County and Municipal Employees (AFSCME), the Washington State Nurses Association (WSNA), and the United Nurses Association of California/Union of Health Care Professionals (UNAC/UHCP).

The unions collectively represent over 500,000 health professionals in hospitals, clinics, school nurse offices, drug treatment programs, and similar workplaces. In a joint statement, they highlighted Centers for Disease Control and Prevention data showing that more than 190,000 healthcare workers have been infected with Covid-19, and over 750 have died. Some estimates are even higher.

A report published in late September by National Nurses United (NNU)—which isn't part of the new suit—linked over 1,700 healthcare worker deaths to Covid-19, including 213 registered nurses. As of Thursday, the virus had infected more than 8.9 million Americans and killed over 228,000.

While President Donald Trump and his administration have been widely lambasted for the federal government's pandemic response, the suit also involves actions that preceded the current public health crisis. As NPR reported in May 2020:

When President Trump took office in 2017, his team stopped work on new federal regulations that would have forced the healthcare industry to prepare for an airborne infectious disease pandemic such as Covid-19. That decision is documented in federal records reviewed by NPR.

"If that rule had gone into effect, then every hospital, every nursing home would essentially have to have a plan where they made sure they had enough respirators and they were prepared for this sort of pandemic," said David Michaels, who was head of the Occupational Safety and Health Administration until January 2017.

There are still no specific federal regulations protecting healthcare workers from deadly airborne pathogens such as influenza, tuberculosis, or the coronavirus. This fact hit home during the last respiratory pandemic, the H1N1 outbreak in 2009. Thousands of Americans died and dozens of health care workers got sick. At least four nurses died.

The unions charge that the administration tabling work on an Infectious Diseases Standard and refusing to resume it in the face of the pandemic amount to an unreasonable delay in violation of the Administrative Procedure Act and the Occupational Safety and Health Act (OSH Act).

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Both UNAC/UHCPAFT president Denise Duncan and AFT president Randi Weingarten on Thursday noted persistent shortages of personal protective equipment (PPE) during the pandemic—which are generating fresh concerns given an ongoing surge in cases.

"Those that provide healthcare to the community should never have to resort to borrowing, hoarding, or rationing PPE to protect workers and patients," said Duncan, a registered nurse. "Based on science, standards need to be established for creating, distributing, and storing PPE."

"Oversight is necessary to protect caregivers from expired or poor quality equipment, and healthcare workers need to feel safe in the workplace and know that the healthcare system will protect them and the public alike," she added.

Weingarten declared that "in times of national crisis, the government's job is to protect people—and in the case of protecting workers on the front line of this pandemic, the federal government has failed."

"Doctors, nurses, respiratory techs, and other healthcare professionals have been treating Covid-19 patients for the better part of a year without basic workplace protections, including adequate PPE, robust testing, and, most importantly, an Infectious Diseases Standard that would require employers to establish a comprehensive infection control program to protect frontline workers who are facing daily exposure," Weingarten continued.

"OSHA has failed to regulate employers, which in turn have failed to protect the people caring for Covid-19 patients," Weingarten said. "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."

Healthcare professionals from the involved unions—including Adye-Whitish, an emergency room nurse at a hospital in Washington state, and Laurence Rick, a physician assistant at Kaiser Permanente's South Bay Medical Center in Los Angeles—shared (pdf) written declarations supporting the litigation.

The unions are being represented by Democracy Forward. The group's legal director, Sean Lev, said that "from the start, the Trump administration abdicated its responsibility to keep healthcare workers—and the communities they serve—safe."

"The administration's unlawful decision to shelve proposed protections for healthcare professionals has recklessly exposed them to deadly infectious diseases like Covid-19," Lev added. "The decision betrays a dangerous disregard for the law and the health and safety of America's frontline workers."

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