OSHA’s COVID-19 National Emphasis Program: What Care Providing Establishments Need to Know
While senior living organizations and other care providers may be feeling some relief from COVID-19 with vaccinations well underway and visitors welcome back into buildings, it is important to not forget about federal programs that are still operating with COVID-19 in the forefront, such as OSHA’s latest National Emphasis Program (NEP).
The newest OSHA NEP was launched in March 2021, targeting establishments in industries such as skilled nursing, assisted living, home health care, and residential social services entities that have an increased potential for employee exposure to COVID-19. Through the NEP, OSHA makes clear that they will be ramping up onsite inspections and enforcement efforts against such employers.
OSHA’s selection process for identifying which establishments will undergo an inspection will include a combination of randomly generated lists, establishments for which OSHA received a safety/health complaint from an employee, and establishments with a higher rate of illness based on 2020 300A summary data. Regional OSHA offices may also expand their list of establishments to be inspected based upon information obtained from “appropriate sources”, such as local health departments, and may expand the scope of an inspection originally not related to COVID-19 if they note concerns related to COVID-19 control measures during their inspection.
What to Do When OSHA Comes Knocking
If an OSHA compliance officer shows up at your door, do not feel that you need to let them have free reign of the facility. The compliance officer needs to first complete an opening conference with an appropriate facility representative to inform why the inspection is occurring. The facility representative can use this opportunity to ask the compliance officer why the facility was chosen to ensure the facility was chosen in accordance of NEP guidance, and to communicate their expectations to the compliance officer in regards to the visit.
If your establishment had a prior OSHA inspection related to COVID-19 in the past 12 months, notify the compliance officer of this and ask them to confirm with their office before proceeding with the inspection. If your establishment has been cited or OSHA closed out a COVID-19 investigation in the past 12 months, guidelines in the NEP state that your facility may not need to be inspected.
What They Will Look At
Areas of focus that the compliance officer will most certainly review during a COVID-19 NEP inspection include:
- Infection control protocols
- Hazard assessment
- OSHA record keeping
- PPE availability and staff training on accessibility and use
- The facility’s respiratory protection program (RPP). The RPP seems to be the largest area of focus for OSHA compliance officers, so it is extremely important that there is a written program followed that includes proper fit testing and medical evaluations. They will dig into each component of the RPP, and ask employees if they have been fit tested, filled out a medical evaluation, and what training regarding respiratory protection has been provided to them. Be sure to repeat the required annual training and fit testing per OSHA standards.
Know When to Challenge
OSHA can cite violations that have occurred six months prior to an inspection. Therefore, if an alleged violation occurred more than six months ago and has been corrected, an establishment should not be cited for it. You can challenge the compliance officer if this were to occur.
In addition, if a compliance officer identifies a potential concern from months prior, but at the time the establishment was in compliance with CDC recommendations which have since changed, be sure to point this out to the officer. It is important to note that if a compliance officer identifies a safety violation related to an area other than COVID-19 such as slips/trips/falls or blood borne pathogens, the officers must address and issue citations if appropriate.
Focus on Anti-Retaliation
This NEP also includes added focus to ensure workers are protected from employer retaliation for bringing forward workplace safety or health concerns. OSHA will be focusing enforcement on employers who retaliate against employees who complain about unsafe/unhealthful conditions. Not only will OSHA likely complete their own investigation based on the employee safety or health complaint, but they will be forwarding allegations of retaliation to the federal Whistleblower Protection Program.
Upon an inspection, OSHA will distribute anti-retaliation information to employees, and ask employees if they have felt retaliated against for bringing forward a safety or health concern to their employer.
Now is a great time to review your organizational process for responding to employee safety or health complaints to ensure timely and thorough follow-up takes place, as employees who feel like their complaints are not being addressed are the ones that make the call to OSHA. Moreover, it is an opportune time to review and update your policy that addresses employee anti-retaliation and ensure supervisors understand actions that may be considered retaliatory when addressing employee complaints.
Prepare in Advance
This NEP will remain in effect not longer than 12 months from the date of onset, or until it is canceled or superseded by another directive. OSHA will be reviewing the NEP six months from the date it was issued to assess the program’s effectiveness, putting this review around mid-September.
OSHA finally published their long-awaited Emergency Temporary Standard (ETS) for COVID-19 on June 10, 2021, but this does not negate the current NEP in place. It is critical for senior care and other establishments to prepare themselves for an OSHA inspection.
Organizations may consider appointing an OSHA “Champion” to take the reins of managing OSHA compliance. It is essential to train not just those in the organization who will be managing an OSHA inspection on what to do when OSHA is in the building, but also any front office staff who have the first interaction with the compliance officer. As your trusted partner, M3 can assist you with OSHA preparation and response efforts, and has multiple tools to help you be successful:
On the M3 Insight Center:
- Understanding OSHA’s COVID-19 National Emphasis Program and Emergency Temporary Standard Webinar
- Encourage Employees to Speak Up
- Communication Channels Tool
Reach out to your M3 account executive for these additonal tools:
- Guide to Managing an OSHA Inspection
- OSHA Audit Checklist
In the event of an OSHA inspection, be sure to immediately notify your M3 risk manager to assist you with the process, as well as before an inspection occurs to assist with preparation efforts.