Earlier in 2022, Federal Occupational Safety and Health Administration (“OSHA”) area offices were charged with conducting follow-up inspections directed at hospitals and skilled nursing facilities that had been cited for violating Covid-19 safety requirements at the height of the pandemic in 2020 and 2021. Under the initiative, OSHA sought to devote a full 15% of these inspections per region to nursing home and assisted living communities. OSHA’s goal was to mitigate the spread of Covid-19 and later variants by assessing employer compliance efforts in hospitals and nursing homes to combat ongoing and future Covid-19 surges.

Healthcare facilities were subject to follow-up inspections if they fell within one of these categories: 1) the facility received a prior Covid-19 related citation in 2020-2021 or a hazard alert letter was issued; 2) the facility was subject to a follow-up monitoring inspection due to a Covid-19 complaint and rapid response investigation; or 3) the facility underwent a “remote only” inspection in which a Covid-19 related citation was previously issued. Notably, healthcare facilities that contested a prior citation for alleged Covid-19 violations, settled OSHA’s claims, and agreed to an abatement program were subject to new inspection requests under the initiative prior to even completing the abatement process for the original claim.

Under the OSHA’s initiative, inspections were conducted from March 9, 2022 to June 9, 2022 and OSHA had up to six months to issue a citation from when the new alleged violation occurred. Data collected from Fisher Phillips’ OSHA Inspection Tracker reveals that 290 inspections in the “Healthcare and Social Assistance” space were conducted for the period in question. This data further reflects the actual percentage of average inspections for all regions only came in around 6%, well below OSHA’s 15% goal.

In cases where violations and citations were issued under the initiative, the most common deficiencies related to Personal Protective Equipment/Respiratory Protection and Reporting/Record Keeping requirements under OSHA Standards 1910.134 and 1904.40. For citations issued for the period ending October 31, 2022, providers received monetary penalties ranging from $0 to $125,340 with most penalties falling within a range of $4,000 to $10,000.

OSHA remains committed to taking healthcare providers to task where Covid-19 related enforcement is concerned and providers must remain vigilant in keeping Covid-19 policies and procedures up-to-date. Lashly & Baer recommends that providers pay particular attention to maintaining compliance with respiratory protection programs, ventilation practices, and reporting and record keeping requirements under the applicable OSHA standards.

References:

United States Department of Labor (2022, March 2). COVID-19 Focused Inspection Initiative in Healthcare. Retrieved from: https://www.osha.gov/laws-regs/standardinterpretations/2022-03-02;

Fisher Phillips OSHA Inspections Tracker. Retrieved from: https://www.fisherphillips.com/innovations-center/OSHA-Inspections-Tracker.html

OSHA Inspections with Covid-19 Related Violations. Retrieved from: https://www.osha.gov/enforcement/covid-19-data/inspections-covid-related-citations

Prepared by:

Matthew J. Eddy

Phone: 314-436-8355

meddy@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.