For the second time in a week, key members of the healthcare provider community are the subject of an announcement promising further review of the pandemic by a federal agency. The Occupational Safety and Health Administration (OSHA) has just announced an enforcement memorandum changing its COVID-19 inspection targeting of general industry and healthcare to focus primarily on hospitals and skilled nursing facilities that treat or care for COVID-19 patients. OSHA’s aggressive effort, announced yesterday, follows last week’s presidential plan to set minimum staffing requirements for nursing homes and prevent room overcrowding in a bid to reduce the spread infectious diseases such as COVID-19. What are the five most important things you could do today to make sure you’re ready to be turned on?

New (and Unusual) OSHA Initiative: A Sneak Peek

OSHA’s targeted initiative is unusual in its allocation of agency resources. From March 9 to June 9, OSHA is required to spend 15% of all of its inspections by region to health care organizations falling under the following NAICS classifications:

• 622110 General medical and surgical hospitals
• 622210 Psychiatric and drug addiction hospitals
• 623110 Nursing facilities (skilled nursing facilities)
• 623312 Service residences for the elderly

The agency has made it clear to regional and regional office management that it will hold the offices accountable to achieve this goal. OSHA reserves the right to increase or decrease these targets based on case rates and other factors in a specific region. Such concentration 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 increased risk of 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 pressure from unions and third parties, as well as a more logical use of OSHA’s limited resources. Although the agency removed the non-record keeping portions of its Temporary Health Care Emergency Standard (H-ETS) in December, it says it will accept continued compliance with the H -ETS as meeting employers’ obligations under OSHA’s General Duty Clause.

Criteria for Conducting Targeted Healthcare Inspections

Establishments that need to prepare for the impending review are those that fall under the NAICS codes listed above. You may be selected for inspections under this initiative if you meet one of the following criteria:

1. You are in line for a follow-up inspection to any previous inspection where a COVID-19 related citation or Hazard Alert Letter (HAL) was issued;
2. You are subject to follow-up or monitoring inspections after being randomly selected for a closed COVID-19 unscheduled activity (UPA), or you are targeted due to COVID-19 complaints or rapid response investigations (RRI); Where
3. You receive surveillance inspection under randomly selected, remote COVID-19 inspection principles only when citations related to COVID-19 have already been issued in your organization.

Targeted employers are not exempt from other OSHA inspection programs for COVID-19 or other topics, even if you are on this list of targeted targets. More than 20 states have state OSHA programs that may not immediately adopt this targeted initiative program or may do so later. However, most state OSHA programs will likely 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 oversight of nursing homes. The Centers for Medicare & Medicaid Services (CMS) will oversee the implementation and enforcement of these standards as they are developed. According to the president, care homes that fail to meet these standards will be “held accountable”.

In addition to these announcements, implementation of the COVID-19 vaccine requirement for all staff at CMS-certified healthcare providers is also underway, although the Centers for Disease Control and Prevention (CDC) has relaxed their general masking recommendations.

What should you do? A 5-step preparation plan

So, despite COVID-related fatigue and staffing shortages, nursing homes, hospitals, and all covered healthcare employers should ensure they are prepared for the applicable aspects of these federal requirements. . Your preparation should include the following steps:

1. Confirm which rules and standards apply to your operations

   These federal requirements do not apply to all health care providers. For example, states with their own OSHA-approved state plan may do this differently than states subject to federal OSHA. However, all healthcare employers should take note of this focus on high-risk settings in order to be prepared for future infectious disease outbreaks.

   The plan announced during the president’s speech at SOTU is specifically focused on nursing homes. And while it covers a very wide range of people working in healthcare facilities, CMS’s immunization mandate only applies to Medicare and Medicaid-certified providers. It is therefore possible that an employer is covered by all, some or none of these initiatives. The first step is to determine which, if any, of these initiatives apply to your operations.

2. Review and confirm compliance with all applicable COVID-19 protocols, including documentation

   Even if your operations are not directly covered by any of these new initiatives, you should ensure that you have written procedures and protocols in place to protect employees, patients, visitors and others from the ravages of COVID-19. 19. Although the pandemic has tested everyone’s stamina, now is not the time to be complacent or let policies become stale. Maintaining current and effective protocols is critical to ensuring the integrity of your operations in the future, especially in a healthcare environment.

   OSHA is looking for evidence that an employer continues to monitor not only public health guidelines, but also changing infection rates at its sites and in the communities its employees come from. Although an employer may have phased out some mitigation efforts as infection rates declined and state and local authorities relaxed requirements, OSHA expects employers to be prepared to reinstate mitigation tools as needed. If your policy and procedures have not been revised since May 2020 or even last year, OSHA may believe that the documents no longer represent actual practices or that you are not anticipating potential future challenges.

3. Confirm your vaccine mandate status

   Again, the vaccination mandate only applies to CMS-certified Medicare and Medicaid participants. It provides for specific medical and religious accommodations “required by law” and specifies how accommodation requests must be documented. The vaccine mandate also applies to a broad definition of personnel, which extends well beyond your employees. The terms of reference include further detailed policy requirements, all of which will be important in demonstrating compliance as CMS continues its enforcement activities. Accordingly, you must ensure that you are prepared to demonstrate not only that all staff have been vaccinated (or obtained appropriate accommodation or delay), but that your policies and record keeping comply with the Interim Final Rule. from CMS.

4. Continuously assess recruitment and retention status

   It’s no secret that the challenges of the past two years have tested the endurance of frontline healthcare workers. This has led some employees to leave for other jobs and has made recruitment and retention a key priority for their employers. The controversial nature of COVID-19 vaccination mandates has added a layer of complexity to the challenges faced by healthcare employers. Managing these challenges requires thoughtful communications, creative use of technology, and investment of financial resources. Staff recruitment and retention remains a critical issue that requires continued attention and will continue to do so for the foreseeable future.

5. Review your OSHA inspection management procedures

   Finally, many employers rarely undergo an OSHA inspection. You may need to strike the essential balance between professionalism and cooperation while limiting the scope of the inspection and ensuring that the correct facts are provided. You don’t want to create bad evidence of non-compliance unnecessarily. Don’t judge the challenges of an OSHA inspection based on a visit 10 years ago.

Conclusion

Although recent announcements of additional federal scrutiny shine a light on their operations, healthcare employers are used to working and succeeding under pressure. The key steps listed above simply help guide you towards the inevitable light at the end of the tunnel.

We’ll be monitoring the situation and providing updates as developments occur, so make sure you’re subscribed to Fisher Phillips’ Insight system for the most up-to-date information. If you have any questions about how to ensure your policies comply with workplace and other applicable laws, contact your Fisher Phillips attorney, the authors of this overview, or any attorney on our industry team. of health.