By Kevin Hess

Law360 (September 4, 2020, 12:14 PM EDT )

Kevin Hess

As deaths and hospitalizations of health care workers increase, so does the number of Occupational Safety and Health Administration inspections at health care facilities. Over the past couple of months, whether resulting from employer self-reporting to OSHA or employee complaints related to safety concerns, OSHA enforcement against health care employers has increased as it relates to COVID-19-related inspections.

Back in May, OSHA started issuing COVID-19-related citations against nursing facilities when six nursing home employees in Georgia were hospitalized as a result of COVID-19 allegedly contracted while at work. OSHA accused that nursing home, Winder Nursing Inc., of failing to report the hospitalizations within the statutorily mandated time period and proposed a $6,500 fine for the alleged violation.

In July the trend continued when OSHA issued its second COVID-19-related citation involving three nursing facilities that are part of Ohio health care company OHNH EMP LLC. The citation followed the reported hospitalization of seven of the nursing facilities' employees, which triggered a series of inspections of these facilities from April to June.

After the inspections, OSHA determined that the employer did not have a comprehensive written respiratory protection program and that it had failed to adhere to OSHA's standards relating to respiratory equipment inspection. As a result, OSHA issued "serious" citations against the Ohio health care company for a proposed $40,482 penalty.

Context for Health Care Employers

The recent citations against health care employers in Georgia and Ohio have been followed by similar situations in Nevada and Minnesota. The citation allegations range from lack of personal protective equipment, to concerns about a lack of training on appropriate standards.

While OSHA has not issued a standard that specifically addresses how to control hazards posed by COVID-19 or other airborne diseases, the "Updated Interim Enforcement Response Plan for Coronavirus Disease 2019" includes a nonexhaustive list of the standards OSHA is most likely to cite for hazards posed by COVID-19.

One critical area of concern for health care employers is ensuring that workers use proper PPE when exposed to a patient with a case of suspected or confirmed COVID-19. OSHA recommends that exposed workers wear not only gloves, gowns and eye/face protection, but also a National Institute for Occupational Safety and Health-certified, disposable N95 facepiece respirator or better.

However, simply using this respiratory equipment is not enough, it must be used in accordance with a comprehensive respiratory program that meets the requirements of OSHA's respiratory protection standard (Title 29 of the Code of Federal Regulations, Section 1910.134), which includes medical exams, fit testing and training.

To date, OSHA has classified multiple citations nationwide as "serious" against health care employers related to the employers' training programs and fit testing related to their respiratory programs.

A second target area by OSHA, involving multiple citations to date, involves failing to report the hospitalizations of employees for COVID-19-related illness. These citations have typically been classified as "other-than-serious" and like the respiratory protection citations have also carried fines imposed by OSHA.

Title 29 of the Code of Federal Regulations, Section 1904.39(a)(2), requires that employers must report to OSHA within 24 hours any in-patient hospitalization of one or more employees for a work-related illness. While adhering to this standard may seem relatively simple, employers run into difficulty determining whether a hospitalization is for a work-related incident when it comes to assessing COVID-19-related situations.

In the case of health care employees with known exposures to suspected or confirmed COVID-19 infections, it is safe to assume that OSHA will treat any hospitalization for COVID-19 symptoms as work-related absent clear and decisive evidence to the contrary.

What Should Health Care Employers Do?

With COVID-19 inspections and citations rising against the health care industry, what should employers do to best insulate themselves from potential OSHA involvement?

First, health care employers should reference OSHA's updated interim guidance, OSHA's "Guidance on Preparing Workplaces for COVID-19," as well as the most recent OSHA guidance on record-keeping enforcement. Additionally, employers should become familiar with OSHA's industry-specific guidance for health care workers and employers on COVID-19. This material will assist in determining how employers can best mitigate potential employee exposure to COVID-19 and in determining whether a case of COVID-19 is work-related.

Furthermore, health care employers should review and possibly revise their comprehensive respiratory protection programs to ensure that they are compliant as it relates to not only the use of proper COVID-19-related PPE but also includes specific training and fit testing requirements. Moreover, employers should also ensure that all employees subjected to the company's respiratory protection program have documentation in their personnel file related to the specific individual's training and fit testing compliance.

In addition, health care employers should become familiar with the OSHA guidance about safe work practices for employers including ways to ensure systems are in place to differentiate "clean areas." Health care employers will need to implement engineering and administrative controls including the use of physical barriers or partitions to guide patients and personnel throughout the facility identifying clean areas from potentially contaminated areas. Administrative controls include but are not limited to the isolation of patients with suspected or confirmed COVID-19 as well as restricting access to those patients to minimize the number of employees exposed to the potential risk.

Finally, health care employers should be prepared for an OSHA inspection as the likelihood of such an inspection will increase along with each new positive COVID-19 case. Preparing for an OSHA inspection includes not only ensuring that the company is compliant with COVID-19-related OSHA regulations, but all safety regulations applicable to the company. Additionally, employers should train employees on the proper procedure and handling of an OSHA inspection, including the proper individuals to cooperate with OSHA and oversee the inspection which often should include legal counsel.

Conclusion

Now more than ever, health care employers must focus on the health and safety of their employees to ensure that they are doing everything possible to protect them from COVID-19.

Without a doubt, COVID-19-related OSHA inspections will continue to rise in the immediate future given employee concerns and complaints for their workplace safety amid the ongoing pandemic. In fact, OSHA's principal deputy assistant secretary, Loren Sweatt, conceded as much in a recent statement accompanying the citations against health care employers when she said, "OSHA has and will continue to vigorously enforce the respiratory protection standard and all standards that apply to the coronavirus."

OSHA's position related to COVID-19 along with the number of related inspections growing each month across the country suggest that this is only the tip of the iceberg in terms of OSHA issuing COVID-19-related citations to health care employers.

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Kevin Hess is a partner at Fisher Phillips.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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