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April 21, 2022

OSHA’s New COVID-19 Focused Inspection Initiative in Health Care

This Bulletin is brought to you by AHLA’s Labor and Employment Practice Group.
  • April 21, 2022
  • Dee Anna D. Hays , Ogletree Deakins Nash Smoak & Stewart PC
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Despite the expiration of the Occupational Safety and Health Administration’s (OSHA’s) health care emergency temporary standard (Healthcare ETS) on December 21, 2021, OSHA’s COVID-19 enforcement initiatives targeting health care employers are heating up.

On December 27, 2021, OSHA issued a statement that it intends to issue a permanent standard that will protect health care workers from COVID-19 hazards and is considering broader infectious disease rulemaking. OSHA confirmed it withdrew the non-recordkeeping portions of the Healthcare ETS. Only the COVID-19 log and reporting provisions—29 C.F.R. 1910.502(q)(2)(ii), (q)(3)(ii)-(iv), and (r)—remain in effect. Nevertheless, OSHA will continue to enforce the general duty clause and other applicable standards, including the personal protective equipment (PPE) and Respiratory Protection Standards. OSHA also noted it would accept continued compliance with the terms of the Healthcare ETS as satisfying employers’ related obligations.

OSHA also formally withdrew its vaccine-or test ETS for large employers effective January 26, 2022, following a Supreme Court decision that blocked enforcement of the ETS. However, the story does not end there.

On March 2, 2022, OSHA announced a COVID-19 focused inspection initiative in health care that will cover the three-month period from March 9, 2022 to June 9, 2022. These partial-scope inspections target the hospital, nursing, and residential care sectors in NAICS codes 622110, 622210, 623110, and 623312. Specifically, these facilities may be inspected if they meet one of the following criteria:

  • Follow-up inspection of any prior inspection where a COVID-19-related citation or hazard alert letter (HAL) was issued;
  • Follow-up or monitoring inspections for randomly selected closed COVID-19 unprogrammed activity (UPA), to include COVID-19 complaints and Rapid Response Investigations (RRIs); or
  • Monitoring inspections for randomly selected, remote-only COVID-19 inspections where COVID-19-related citations were previously issued.

Sites covered by this initiative are to receive an onsite OSHA inspection unless the facility does not treat or handle known COVID-19 patients. Facilities that transfer patients or residents exhibiting symptoms of COVID-19 offsite are still eligible to receive an inspection to assess the employers’ procedures for protecting employees while making this determination during initial care of the patient or resident.

As for the scope of these inspections, OSHA will be looking to do the following:

  • Determine whether previously cited COVID-19-related violations have been corrected or are still in the process of being corrected. For follow-up inspections of closed UPA and RRIs, determine whether COVID-19-related complaint or referral items have been corrected. Review violation worksheets or UPA complaint or referral items and any employer-provided abatement-certification.
  • Determine whether the employer has implemented a COVID-19 plan that includes preparedness, response, and control measures for the SARS-CoV-2 virus. (If this plan is a part of another emergency preparedness plan, the review should not be expanded to the entire emergency preparedness plan).
  • Verify the existence and effectiveness of all control measures, including procedures for determining vaccination status by reviewing relevant records. Verification of vaccination protocols may be an indicator of a facility’s overall COVID-19 mitigation strategies. OSHA will refer any vaccination-related deficiencies to the Centers for Medicare and Medicaid Services (CMS).
  • Request and evaluate the establishment’s COVID-19 log and the Injury and Illness Logs (OSHA 300 Log, OSHA 300A Summary, and any applicable OSHA 301 Incident Reports) for calendar years 2020, 2021, and 2022, if available, to identify work-related cases of COVID-19.
  • Review the facility’s procedures for conducting hazard assessments and protocols for PPE use.
  • Conduct a limited records review of the employer’s respiratory protection program. The records reviewed may be limited to the written respiratory protection program and fit tests, medical evaluations, and training records for the interviewed employees.
  • Perform a limited, focused walkaround of areas designated for COVID-19 patient treatment or handling (common areas, walkways, and vacant treatment areas where patients have been or will be treated), including performing employee interviews to determine compliance.

Even though OSHA did not renew the Healthcare ETS, this initiative will look at some of the same issues that were required under the ETS—beyond the recordkeeping elements that OSHA did not allow to expire. It appears that OSHA intends to continue enforcement of many of the ETS requirements that some health care providers expected to sunset. Moreover, OSHA’s intention to refer any vaccination-related deficiencies to CMS may be another cause of concern for covered employers.

To prepare for any such inspection under the initiative, health care employers in the hospital, nursing, and residential care sectors may want to consider taking the following actions:

  • Review any prior COVID-related OSHA activity (inspections, RRIs, HALs) to ensure any identified hazards have been addressed.
  • Review the organization’s COVID-19 plan to ensure it reflects current CDC guidance.
  • Ensure COVID-19 logs are current and continue to follow reporting obligations for fatalities and inpatient hospitalizations.
  • Review the inspection scope list above to ensure facilities are prepared for a potential inspection, prioritizing those facilities previously involved in COVID-related OSHA activity.

Health care facilities not covered by the three-month inspection initiative may still be subject to an OSHA inspection pursuant to OSHA’s revised National Emphasis Program for COVID-19. In fact, on January 13, 2022, U.S. Secretary of Labor Marty Walsh stated “OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the COVID-19 National Emphasis Program and General Duty Clause.”

To date, OSHA has fined employers over $4,034,288 through COVID-related citations, many of which involved health care organizations. This trend is likely to continue as the number of inspections rises under the new initiative.

 

 

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