OSHA Remains in Control Over Emergency Temporary Standards
In re Nat’l Nurses United, No. 22-1002, 2022 WL 3694867 (D.C. Cir. Aug. 26, 2022)
In August 2022, a Court of Appeals for the District of Columbia case relating to OSHA’s regulatory rights and the COVID-19 pandemic was published.
In In re National Nurses United, the Court held that it did not have the authority to overturn OSHA’s decision not to enforce or renew its emergency temporary standard (ETS) that was initially promulgated to mitigate the risk of COVID-19 in healthcare settings. National Nurses United and its co-petitioners sought a writ of mandamus compelling OSHA to issue a permanent standard superseding the ETS, to retain the ETS until a permanent standard replaced it, and to enforce the ETS. The Court held that it did not have the authority or jurisdiction to do such. Rather, the discretion to promulgate or enforce an ETS belonged to OSHA, and absent a clear violation of that discretion, the Court could not intervene.