By Braden Campbell

Law360 (October 29, 2020, 7:36 PM EDT ) A coalition of nurses' and teachers' unions asked the Ninth Circuit on Thursday to make the U.S. Department of Labor move forward with a long-delayed rule to protect health care workers from infectious diseases as U.S. coronavirus cases surge.

The DOL's Occupational Safety and Health Administration bungled its obligation to protect health care workers from workplace hazards by failing to issue a rule after more than a decade of uneven development, the unions said in their petition for a writ of mandamus to the Ninth Circuit.

"OSHA has a duty to issue a safety and health standard to protect health care workers from the significant risk of harm from infectious diseases," the unions said. "The record of the risk to public health from [health care-associated infections], even in ordinary times, is clear. The risks are especially high during pandemics like H1N1 in 2009 and now COVID-19."

The American Federation of Teachers, the American Federation of State, County and Municipal Workers, the Washington State Nurses Association and the United Nurses Association of California comprise the coalition.

OSHA is charged with protecting workers from on-the-job hazards by issuing rules for employers to keep their employees safe and taking action against businesses that fall short of these standards. Unions and other workers' advocates have accused the agency of skirting its mandate during the pandemic, including by failing to implement rules specific to COVID-19. Amid the crisis, its failure to issue a rule specific to health care employers is "unreasonable and unlawful," the unions said Thursday.

The agency announced plans to issue a rule requiring health care employers to protect workers from infectious diseases in mid-2010 after workers' advocates raised concerns during the H1N1 pandemic. The agency proposed a framework for an infectious disease standard and solicited stakeholder feedback over the next several years. It said it was working on a draft plan late in the Obama administration. But that plan never materialized after the Trump administration put the rule on the regulatory back burner in 2017. 

The petition asks for a writ of mandamus making OSHA issue a proposed rule within 90 days. A writ of mandamus is a rarely granted court order forcing a government entity or individual to fulfill a legal duty. OSHA has such a duty now, the unions argued.

The Occupational Safety and Health Act compels OSHA to act when it identifies a significant risk by issuing a standard to eliminate it, the unions said. That OSHA undertook efforts to issue a rule shows the risk exists, and the COVID-19 pandemic has only amplified the need to protect health care workers, the unions said.

"A significant portion of those infected and dying from COVID-19 are health care workers, including doctors, nurses, and nursing home aides," they said, citing a recent study suggesting a quarter-million health care workers have been sickened by COVID-19 and more than 1,700 have died.

And the agency has unreasonably dawdled under the D.C. Circuit's 1984 ruling in Telecommunications Research & Action Center v. FCC , which the Ninth Circuit applied in a 2017 order that the Environmental Protection Agency issue new standards regarding lead paint, the unions said.

The TRAC test analyzes petitions accusing federal agencies of slow-walking rules by balancing six factors, including whether delays comply with a "rule of reason" and whether human health is at stake. These factors heavily favor a rule, and others "are either neutral or support" the need for OSHA to act, the unions said.

The suit comes months after the D.C. Circuit rejected an AFL-CIO petition for a writ of mandamus making OSHA issue an emergency rule requiring employers in all industries to protect workers from the COVID-19 pandemic. The court found that OSHA acted reasonably when it chose to rely on general rules to protect workers from COVID-19 rather than issue a new standard, an OSHA spokesperson noted Thursday.

"Since that court ruling, OSHA has continued to rely on its preexisting authorities in order to keep America's workplaces safe," the spokesperson said. The agency has issued 112 coronavirus-related citations totaling more than $1.6 million in penalties under these standards, the spokesperson added.

But the unions may succeed where the labor federation failed, lead attorney Michael Martinez told Law360. Because the AFL-CIO asked for an emergency rule, it faced the higher burden of proving that a standard was necessary to mitigate a "grave danger," he said. The labor federation also asked for a new, generally applicable rule, while the new suit asks to expedite a narrower rule that's already in the works.

"If the risk is there, then OSHA must address that risk," said Martinez, a senior counsel with legal advocacy group Democracy Forward. "Because they haven't for over 10 years, under the TRAC factors as we lay out in our petition, it's unreasonable."

The unions are represented by Michael Martinez, Jeffrey Dubner and Sean Lev of Democracy Forward.

Attorney information for the DOL was not immediately available Thursday.

The case is In re: American Federation of Teachers et al. v. Occupational Safety and Health Administration, case number 20-73203, in the U.S. Court of Appeals for the Ninth Circuit.

--Editing by Haylee Pearl.

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