OSHA enforcement against health care facilities are on the rise. We have seen an uptick in OSHA violations against long-term care facilities involving the use of respirators. Did you know that proper fit tests, medical evaluations, and training are required for all employees who are in close contact with residents with suspected or confirmed Coronavirus infections? In the COVID-19 world, this basically means everyone at your facility.

OSHA has been very active issuing citations for “serious” violations and then offering a 40% reduction to qualified entities for prompt payment and resolution. While this might seem enticing, do not just pay the violation and seed out experience health care counsel. Too often we see the facility pay the fine and not realize that these violations can be negotiated and reclassified to lower violations and maybe even grouped together. Even further, the “serious” violation you did not challenge could be used as an enhancement for any future violations costing you further time and money.

There are also issues to consider such as the impact of admitting to a violation and negotiating an exculpatory clause. Finally, once you have reached an agreement, you need to be aware of complying with abatement requirements and potential free or low-cost options available through the state to help offset costs and promote compliance. For instance, the Quality Improvement Program for Missouri (QIPMO) is cooperative between the University of Missouri School of Nursing and the Missouri Department of Health and Senior Services that offers review of infection control policies as well as in-services.

These are just some of the many issues to consider in handling an OSHA enforcement matter against a health care facility. Please feel free to contact one of our Health Care Advisory Team members consisting of both health litigation and regulatory attorneys to discuss your matter.

Our healthcare attorneys are available to answer your specific questions about the new regulations, and will help you implement the requirements. Please reach out to your Lashly & Baer attorney with any questions.

Prepared by:
Michael R. Barth
Phone 314-436-8382
mbarth@lashlybaer.com
This summary and legal alert is an overview of the new guidance. It is not intended to be, and should not be construed as, legal advice for a specific factual situation.