On March 12, 2021, OSHA established the National Emphasis Program – COVID-19 (the NEP) targeting higher hazard industries for enforcement action and updated and replaced its Enforcement Response Plan for COVID-19 (the Enforcement Plan) to prioritize in-person worksite inspections by OSHA Compliance Safety and Health Officers.
According to the NEP, OSHA is targeting those specified industries whose workers have increased “potential exposure” to a COVID-19 hazard, and that puts the largest number of workers at serious risk. The NEP also focuses on making sure that “workers are protected from retaliation,” including by referring allegations of retaliation to OSHA’s Whistleblower Protection Program. Home health care is one of the industries that will be specifically targeted by OSHA per these new NEP guidelines.
In the Enforcement Plan, OSHA instructs its Area Directors to “prioritize COVID-19-related inspections involving deaths or multiple hospitalizations due to occupational exposures to COVID-19” and “[w]here practical … perform on-site workplace inspections.”
What Should Providers Do Now?
In light of the NEP and the Enforcement Plan, all employers who are not primarily relying on telework or other remote practices for their employees should consider the following:
- Review and update your COVID-19 safety documents, programs, and procedures, including your:
- written COVID-19 safety and health plan, including contingency planning for emergencies, such as the pandemic
- procedures for hazard assessment
- procedures for PPE assessment and use
- face covering measures for employees and all those with whom an employee would come in contact in the work environment, consistent with CDC guidelines regarding construction, donning, and maintenance of face coverings
- sanitation practices
- worker protection actions implemented under the hierarchy of controls (engineering controls, administrative controls, work practices, and PPE), including physical distancing measures; ventilation; stay-home-when sick and return-to-work procedures for exposed and sick workers; and both routine and case-specific cleaning of surfaces
- respiratory program and PPE provision, including any modifications made as a result of the pandemic and documented good faith measures when compliance is not possible – OSHA has been asking for this from home health care providers throughout the audits they have done during the pandemic
- COVID-19 signage
- training and training records
- signage, training, and procedures encouraging employees to report symptoms and to raise safety concerns, and protecting employees against retaliation for doing so
- practices regarding employee access to exposure and medical records
- injury/illness recordkeeping and reporting documents and procedures
- OSHA Hazard Alerts applicable to the healthcare industry (there is no home care-specific Hazard Alert)
- Review OSHA’s newest COVID-19 Guidance, Mitigating and Preventing the Spread of COVID-19 in the Workplace
- Consider the four elements of the General Duty Clause violation with respect to COVID-19-related hazards: (1) employer failed to keep the workplace free of a hazard to which employees of that employer were exposed; (2) hazard was recognized; (3) hazard was causing or was likely to cause death or serious physical harm; and (4) there was a feasible and useful method to correct the hazard. CDC guidelines will be used to show a recognized hazard and/or feasible means to abate the hazard.
What Should an Employer Expect if OSHA Conducts an Inspection?
- OSHA will not tell you in advance that it is starting an investigation and typically arrives on-site without prior warning.
- Opening conferences will be held in a manner consistent with COVID-19 safety precautions, i.e., in an uncontaminated administrative area or outdoors, and will include union/employee representatives and management personnel responsible for COVID-19 safety and for other COVID-19-related programs, such as HR, medical staff, and facilities/physical plant.
- The “walkaround” will occur in areas that an OSHA investigator determines he/she wants to see. Note that the investigator can issue citations for any health or safety hazard observed during the walkaround, even if not related to COVID-19.
- Interviews of management and non-management personnel can be conducted before, during, and after the walkaround. Employees may be contacted by phone and/or the investigator may ask the employer to set up such calls while on-site. Typically, management cannot be present during the interviews, and an employee can approach the investigator to speak privately.
- The investigator’s document review, including of records of programs described above, may occur before a walkaround and/or the investigator will ask to see or to have sent to the Area Office a copy of specified categories of documents.
- Investigators will be particularly sensitive to indications or complaints of retaliation, including with respect to talking to OSHA representatives at any time, including during an investigation. Actions considered to be retaliation can result in separate Whistleblower enforcement actions, which can result in injunctive or monetary relief to the employee.
- Citations, if issued, will be in the Serious classification, with penalties up to $13,653 per violation.
- A General Duty Clause violation will not be issued except after approval by the OSHA Regional Administrator and the National Office, with input from the Department of Labor’s Regional Solicitor.
- OSHA may decide to issue a Hazard Alert Letter (HAL) rather than a General Duty Clause or other citation, with recommended actions to be taken and subsequently reported to OSHA.
- If the work establishment is part of a multi-location corporation, and a COVID-19 citation or HAL has been issued, OSHA may send a letter to the corporate entity about the citation or HAL and recommend that the corporation assess and abate COVID-19 hazards at all other locations. If unabated hazards are subsequently found, this notification letter may serve as subsequent bases for OSHA upgrading the amount of penalties or classification of its violations.
In sum, OSHA has proclaimed that it intends to take aggressive enforcement measures with respect to a broad range of businesses that have been operating in their usual workplaces during the pandemic. Employers in these businesses should prepare accordingly.