Related Practices & Jurisdictions
The Occupational Safety and Health Administration (OSHA) remains focused on the pandemic in certain workplaces as indicated by its announcement of a new National Emphasis Program (NEP) related to COVID-19. Interestingly, the focus of the NEP includes checking to confirm that certain elements of the COVID-19 healthcare emergency temporary standard (ETS) are in place.
The press release regarding this NEP stated the following: “The … Occupational Safety and Health Administration today announced an enforcement memorandum for a short-term increase in highly focused inspections directed at hospitals and skilled nursing care facilities that treat or handle COVID-19 patients.”
In the March 8, 2022, edition of OSHA’s newsletter, “QuickTakes,” the agency stated:
OSHA launched an initiative to protect healthcare workers at hospitals and skilled nursing care facilities that treat or handle COVID-19 patients. The goal is to control the spread of COVID-19 and its future variants and protect the health and safety of healthcare workers at heightened risk for contracting the virus.
As relates to the locations that would be subject to inspection, the press release made it clear that the scope was narrowed to include just a relatively small subset of healthcare providers:
[OSHA will be] conducting focused follow-up and monitoring inspections of previously inspected or investigated hospitals and skilled nursing care facilities within four North American Industry Classification System codes listed in the memorandum where COVID-19 citations or Hazard Alert Letters were issued, including remote-only inspections where COVID-19–related citations were issued. (Emphasis added.)
In other words, the NEP will focus on healthcare facilities previously cited for issues related to COVID-19 and those that received a Hazard Alert Letter concerning a COVID-19 issue.
OSHA’s March 2, 2022, memorandum to regional administrators, which provides guidance about the focus of inspections, includes the following instructions to compliance officers that seem to suggest that OSHA continues to expect compliance with the now-defunct healthcare ETS:
Determine whether the employer has implemented a COVID-19 plan that includes preparedness, response, and control measures for the SARS-CoV-2 virus. If this plan is a part of another emergency preparedness plan, the review should not be expanded to the entire emergency preparedness plan (i.e., a limited review addressing issues only related to exposure to SARS-CoV-2 would be adequate).
Verify the existence and effectiveness of all control measures, including procedures for determining vaccination status by reviewing relevant records. Verification of vaccination protocols may be an indicator of a facility’s overall COVID-19 mitigation strategies. OSHA will refer any vaccination-related deficiencies to the Centers for Medicare and Medicaid Services (CMS).
So, whereas OSHA has not renewed the healthcare ETS, this NEP will look at some of the same issues that were required under the ETS beyond the recordkeeping element that OSHA did not allow to expire. Many healthcare providers were of the impression that with the demise of the ETS the requirements it contained would pass, but that does not appear to be the case.
© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XII, Number 70