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August 26, 2022

Unions Cannot Force OSHA to Issue Permanent COVID Standard

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Key Takeaways

  • A unanimous three-judge panel in In re: National Nurses United, et al. held that the court lacks jurisdiction to compel OSHA to retain the now-expired Healthcare Emergency Temporary Standard.

On August 26, 2022, the U.S. Court of Appeals for the District of Columbia Circuit turned back efforts by a group of unions seeking to force the Occupational Safety and Health Administration (OSHA) to quickly issue a permanent rule establishing protections for healthcare workers from COVID-19.  

A unanimous three-judge panel in In re: National Nurses United, et al. held that the court lacks jurisdiction to compel OSHA to retain the now-expired Healthcare Emergency Temporary Standard (Healthcare ETS) it issued in June 2021.  The court also held that it does not have the power to require OSHA to promulgate a permanent standard because the agency could, at the end of the rulemaking process, ultimately decide not to issue one.  According to the court, promulgating and enforcing COVID rules fall squarely within OSHA's prosecutorial discretion and, therefore, "is inappropriate for judicial control through mandamus."

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