OSHA’s Plan to Expand Healthcare Presence

Despite the fact that new COVID-19 cases are down, that the recent COVID-19 variants are mild and masking mandates have been lifted in most places, OSHA recently announced a focused COVID-19 enforcement initiative aimed at hospitals and skilled nursing facilities. The focus will be on facilities that treat COVID-19 patients — particularly those previously cited. Employers that are classified under North American Industry Classification System (NAICS) code 622110 (General Medical and Surgical Hospitals), 622210 (Psychiatric and Substance Abuse Hospitals), 623110 (Nursing Care Facilities and Skilled Nursing Facilities), and 623312 (Assisted Living Facilities for the Elderly) should be prepared for an OSHA visit in the coming weeks.

Short-term initiative

The announcement instructed OSHA’s regional offices to conduct prioritized, focused inspections of facilities under the specified NAICS codes between March 9 and June 9, 2022. Assistant Secretary of Labor Doug Parker described the initiative as “using available tools while finalizing the healthcare standard.” Parker also said that the goal is to access a facility’s readiness and “be ahead of any future events in healthcare.”

The initiative does not create new obligations for employers — or require compliance with the COVID-19 Healthcare Emergency Temporary Standard (Healthcare ETS). The only requirements of the now-defunct Healthcare ETS that remain in effect, as of December 27, 2021, are recording the positive COVID-19 cases for all healthcare staff and reporting all COVID-19 related hospitalizations and deaths.

Priorities

OSHA instructed its regional staff to focus on conducting follow-up and monitoring on-site inspections at facilities where:

• OSHA has issued a COVID-19-related citation or hazard alert letter (HAL).
• COVID-19 complaints have been made, and Rapid Response Investigations (RRIs) were conducted.
• Only remote COVID-19-related inspections were conducted.

Inspectors will be looking for evidence that previously cited violations have been corrected. OSHA will also want to verify any administrative control measures, including procedures for determining vaccination status. Inspectors will evaluate the facility’s  COVID-19 Log and the Injury and Illness Logs (OSHA 300 Log, OSHA 300A Summary, and OSHA 301 Incident Reports) and review procedures for conducting hazard assessments.

Prepare

Healthcare employers should prepare for the walkaround aspect of any on-site OSHA inspection. Even though an inspection under this initiative is supposedly “limited to areas of potential non-compliance related to COVID-19,” once OSHA is through the door, any potential violation “in plain sight” can lead to a citation.

Besides confirming your existing COVID-19 policies and procedures, employers should also prepare for an unannounced visit. Who is the person who will greet the inspector? Who will accompany the inspector on a walkaround? Who will take notes, mirror OSHA’s photos, record, and otherwise document anything the OSHA inspector records and documents?

Knowing the answers to these questions — having a plan ahead of time — makes a good first impression and can be very helpful if the visit results in a citation.

New CDC Guidance

The Centers for Disease Control and Prevention (CDC) published new COVID-19 guidance on February 25, 2022. The CDC is now using a COVID Community Level Rating system based on county-level data. The guidance provides data-driven thresholds for implementing different precautions and minimizes the circumstances requiring masks.

OSHA relies on CDC guidance in all its rulemaking activities, and it is likely that the agency will soon update its guidance to reflect the most recent CDC recommendations.

A Permanent Standard

In its January 25, 2022 announcement withdrawing the vaccine-or-test mandate for business, OSHA noted that it is “prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.”

It is assumed that a permanent COVID-19 Healthcare Standard will use the Emergency Temporary Standard — which expired on December 21, 2021 — as a base. It is expected that a permanent standard will be proposed this year. With COVID-19 mostly in the rear-view mirror, the chances of the proposed permanent standard becoming law is quite slim.

Questions?

If you are a healthcare employer with questions about your COVID-19 policies and OSHA, or if you have received a citation, please don’t hesitate to call Orr & Reno for assistance.

About the Author: James Laboe

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