For the second time in a week, key members of the healthcare provider community are the focus of an announcement promising more pandemic-related scrutiny from a federal agency. The Occupational Safety and Health Administration (OSHA) just announced an enforcement memorandum changing its COVID-19 Inspection Targeting from general industry and healthcare to primarily focusing on hospital and skills nursing care facilities that treat or handle COVID-19 patients. OSHA’s aggressive effort, announced yesterday, follows last week’s presidential plan to set minimum staffing requirements for nursing homes and to prevent room overcrowding in an effort to reduce the spread of infectious diseases such as COVID-19. What are the five most important things you could be doing today to ensure you are ready for the spotlight being shined in your direction? OSHA’s New (and Unusual) Initiative: An Overview OSHA’s Focused Initiative is unusual in its allotment of agency resources. From March 9 to June 9, OSHA is required to devote a full 15% of all of its inspections per region to those healthcare organizations falling under the following NAICS classifications:
The agency has made clear to Region and Area Office Leadership that it will hold offices accountable to meet this target. OSHA reserves the right to increase or decrease these goals depending on case rates and other factors in a specific Region. Such a focus makes the likelihood of an inspection very possible, even for healthcare employers who rarely deal with OSHA. As infection patterns change, OSHA is focusing on healthcare workers who are at heightened risk for contracting the virus. This appears to be an interim step until OSHA finalizes an anticipated permanent infectious disease standard for the healthcare industry. These actions are a response to union and third-party pressure, as well as a more logical use of limited OSHA resources. Although the agency withdrew the non-recordkeeping portions of its Healthcare Emergency Temporary Standard (H-ETS) in December, it says it will accept continued compliance with the H-ETS as satisfying employers’ obligations under OSHA’s general duty clause. Criteria for Conducting Focused Healthcare Inspections Facilities that need to prepare for the impending scrutiny are those that fall in the NAICS codes listed above. You may be selected for inspections under this initiative if you meet one of the following criteria:
Targeted employers are not exempted from other OSHA inspection programs for COVID-19 or other subjects even if you fall on this Focused Target List. Over 20 states have State OSHA programs which may not immediately adopt this Focused Initiative Program or may do so later. However, most State OSHA programs likely will adopt all or part of the initiative. But Wait – There’s More More details are forthcoming regarding President Biden’s announcement made during his State of the Union (SOTU) address where he called for increased scrutiny on nursing homes. The Centers for Medicare & Medicaid Services (CMS) will oversee implementation and enforcement of those standards as they are developed. According to the president, nursing homes that fail to meet those standards will be “held accountable.” On top of these announcements, implementation of the COVID-19 vaccine requirement for all staff of CMS-certified healthcare providers is also ongoing, even as the Centers for Disease Control and Prevention (CDC) has loosened its general masking recommendations. What Should You Do? A 5-Step Preparation Plan Thus, despite facing both COVID fatigue and staff shortages, nursing homes, hospitals, and all covered healthcare employers must ensure they are prepared to deal with the applicable aspects of these federal requirements. Your preparation should include the following steps:
Conclusion Although recent announcements regarding additional federal scrutiny shine a spotlight on their operations, healthcare employers are accustomed to working and succeeding under pressure. The key steps listed above simply help keep you moving toward the inevitable light at the end of the tunnel. We will monitor the situation and provide updates as developments occur, so make sure you are subscribed to Fisher Phillips’ Insight system to get the most up-to-date information. If you have questions about how to ensure that your policies comply with workplace and other applicable laws, contact your Fisher Phillips attorney, the authors of this Insight, or any attorney in our Healthcare Industry Team. |