OSHA Inspecting Hospitals for Compliance with COVID-19 Issues
OSHA inspections related to COVID-19 are focusing on prior citations and hazard alerts. Inspectors will ensure previous violations were corrected.
- OSHA expects to see a COVID-19 plan.
- Inspections may include a review of the employer’s respiratory protection program.
- Additional regulations might follow the inspection period.
OSHA’s COVID-19 Focused Inspection Initiative in Healthcare1 is underway, with inspectors visiting hospitals and other healthcare facilities to determine compliance with requirements related to the pandemic.
The inspections are part of a limited program, says Ian D. Meklinsky, JD, partner with Fox Rothschild in Princeton, NJ. It will end June 9. Meklinsky explains that it is focused on these elements:
- Follow-up of any prior inspection where a COVID-19-related citation or hazard alert letter was issued;
- Follow-up or monitoring inspections for randomly selected closed COVID-19 unprogrammed activity (UPA), including COVID-19 complaints and Rapid Response Investigations (RRIs);
- Monitoring inspections for randomly selected, remote-only COVID-19 inspections for sites that received related citations.
The initiative is limited in scope of subject matter, Meklinsky explains. The inspections are limited to these assessments:
- Investigators will determine whether COVID-19-related violations have been corrected or are in the process of correction. For follow-up inspections of closed UPA and RRIs, they will investigate whether COVID-19-related complaint or referral items have been corrected.
- Investigators will ensure the employer has implemented a COVID-19 plan that includes preparedness, response, and control measures.
- Effectiveness of control measures will be verified, including vaccination status procedures. OSHA will refer any vaccination-related deficiencies to the Centers for Medicare & Medicaid Services.
- Investigators will evaluate the facility’s COVID-19 log and the Injury and Illness Logs for calendar years 2020, 2021, and 2022, if available, to identify work-related cases of COVID-19.
- OSHA will review the facility’s hazard assessments procedures and protocols for personal protective equipment (PPE) use.
- OSHA will perform a limited records review of the facility’s respiratory protection program. The records may be limited to the written respiratory protection program and fit tests, medical evaluations, and training records for the interviewed employees.
- Investigators will perform a walkaround of areas designated for COVID-19 patients (common areas, walkways, and vacant treatment areas where patients have been or will be treated), including performing employee interviews to determine compliance.
There are exceptions if the walkaround portion of the inspection reveals violations of the regulations in plain view. In those cases, Meklinsky explains, the inspection may then include review and potential citations related to these issues:
- Compliance under the Respiratory Protection Standard, especially in areas involving close-contact work with suspected or confirmed positive COVID-19 patients. This includes evaluating for proper use of respirators.
- Documentation of the facility’s efforts to obtain and provide appropriate and adequate supplies of PPE.
- Implementation of procedures for screening workers and/or any measures to facilitate physical distancing.
- Employee and visitor use of face coverings in accordance with current public health guidance from the CDC.
If a facility is subject to this inspection initiative, Meklinsky suggests the facility take these steps to prepare:
- Identify a point person to work with OSHA representatives on site.
- Coordinate with legal counsel to uncover any issues to address either before OSHA arrives, during the inspection, or after the inspection.
- Review citations and any related correspondence or settlement agreement to determine if any needed abatement was completed.
- Review any OSHA or employee complaints related to COVID-19 safety issues and verify deficiencies were properly abated/adjusted.
- Ensure a COVID -19 plan is in place and that employees have been trained. The plan should cover the items noted above.
- Ensure compliance with vaccination protocols.
- Review the OSHA 300 Log, OSHA 300A Summary, and any applicable OSHA 301 Incident Reports for calendar years 2020, 2021, and 2022. Ensure they are accurate and properly record COVID-19-related cases.
- Review hazard assessments procedures and protocols for PPE use.
- Ensure the respiratory protection program covers fit tests, medical evaluations, and training records for the employees.
- Review protocols to ensure employees received proper training on COVID-19 safety procedures.
- Review compliance with other applicable OSHA regulations.
“While we are, hopefully, through the worst part of the pandemic, it is clear that OSHA — having been behind the curve during the pandemic — is now looking for ways to improve employee safety going forward,” Meklinsky says. “It would not surprise me if the result of this initiative is additional regulatory proposals aimed not only at healthcare facilities, but employers as a whole.”
ETS Compliance Is Safe Harbor
OSHA has stated a hospital in compliance with the terms of the Emergency Temporary Standard (ETS) will satisfy respiratory protection and PPE standards, says Mini Kapoor, PhD, JD, partner with Haynes Boone in Houston.
“That’s almost like a safe harbor if OSHA comes knocking. The respiratory and PPE standards are the most commonly cited by OSHA regarding COVID,” Kapoor explains. “An easy path is to go back to the plans that were in place in 2021 for these requirements and continue to implement those safety measures.”
Hospitals can treat the COVID-19 inspections similarly to any other OSHA inspections in which the agency issued alerts about what specific hazards and requirements would be checked, says David N. Vozza, JD, an attorney with Norris McLaughlin in New York City. Any facility with a previous citation should be certain the issues have been adequately addressed, with full documentation.
Remember that putting a COVID-19 policy in place is not enough, says Nicholas Anastasopoulos, JD, partner with Mirick O’Connell in Westborough, MA. Employees must receive proper training on the policy, with documentation.
“Typically, the inspector will show up with little notice. There will be an opening conference, then they will request documents, followed by a walkaround,” he says. “The COVID inspection is supposed to be very narrow, but OSHA does say that anything in plain view is fair game. They aren’t going to deviate and start opening doors, but if something is obvious to them that can expose an organization to additional citations and fines.”
The inspection program signals OSHA is prioritizing infectious disease hazards overall, not just COVID-19, says A. Kevin Troutman, JD, partner with Fisher Phillips in Houston. It also indicates OSHA is ramping up on-site inspections after a period in which they were hindered from entering healthcare facilities because of pandemic restrictions and the strain on the healthcare system.
“We know that behind the scenes, OSHA is probably shaping the expired ETS into what will become a permanent standard,” Troutman says. “We understand they also are working on an infectious disease standard that won’t be specific to COVID but will help make sure hospitals are prepared for that kind of thing in the future.”
Risk managers should ensure not only that any previously cited deficiencies were abated, but the corrective action has continued, says Ashley Meredith Strittmatter, JD, shareholder with Baker Donelson in Knoxville, TN.
“Perhaps you had an inspection and you weren’t keeping up with the COVID log. The abatement was to keep it up to date, so you took the right steps to correct that, but that may have dropped off again,” she says. “The best protection is to stay in compliance with the ETS even though it is not in effect now, because that will satisfy what concerns OSHA.”
- Occupational Safety and Health Administration. COVID-19 focused inspection initiative in healthcare. March 2, 2022.
- Nicholas Anastasopoulos, JD, Partner, Mirick O’Connell, Westborough, MA. Phone: (508) 860-1482.
- Mini Kapoor, PhD, JD, Partner, Haynes Boone, Houston. Phone: (713) 547-2261. Email: [email protected].
- Ian D. Meklinsky, JD, Partner, Fox Rothschild, Princeton, NJ. Phone: (215) 299-2000. Email: [email protected].
- Ashley Meredith Strittmatter, JD, Shareholder, Baker Donelson, Knoxville, TN. Phone: (865) 549-7207. Email: [email protected].
- A. Kevin Troutman, JD, Partner, Fisher Phillips, Houston. Phone: (713) 292-5602. Email: [email protected].
- David N. Vozza, JD, Norris McLaughlin, New York City. Phone: (917) 369-8867. Email: [email protected].
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