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September 02, 2022

D.C. Circuit Declines to Order OSHA to Promulgate Permanent COVID-19 Standard

A three-judge panel of the D.C. Circuit declined to order the Occupational Safety and Health Administration (OSHA) to make permanent an emergency temporary standard (ETS) that OSHA had issued in June 2021 to reduce the risk of COVID-19 transmission in healthcare settings. In December 2021, OSHA announced its plan to rescind the ETS and to work on developing a permanent standard.  A coalition of unions representing healthcare professions sought mandamus requiring OSHA to issue a permanent standard in 30 days, maintain the temporary ETS until it promulgates the permanent standard, and to enforce the ETS. The D.C. Circuit found it lacked jurisdiction under the All Writs Act to compel OSHA to act, because the court found no clear violation of a duty to act. The court also found that enforcement of the ETS was a matter of OSHA’s prosecutorial discretion and outside the court’s ability to grant mandamus. Lastly, the court found that the outcome of OSHA’s rulemaking process was also under the agency’s discretion.

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