Gloved hands disinfecting a surface
Micah Dickie
Fisher Phillips attorney

Skilled nursing facility and senior living community operators “should continue to be vigilant” in their COVID-19 mitigation measures even though the Occupational Safety and Health Administration’s COVID-19 focused inspection initiative has ended, Fisher Phillips attorney J. Micah Dickie tells the McKnight’s Business Daily.

That vigilance, he said, should include “excluding employees and vendors from the workplace who have contracted COVID-19 and [ensuring] all employees and vendors understand and follow the controls that are necessary to prevent and control the spread of COVID-19.”

Healthcare employers, particularly long-term care providers, have been under increased scrutiny from the Occupational Safety and Health Administration ever since the agency launched the initiative in March in an effort to control the spread of COVID-19 and protect workers at a heightened risk for contracting the virus.

March 9 to June 9, OSHA was required to devote a full 15% of all of its inspections per region to skilled nursing facilities and assisted living communities, general medical and surgical hospitals, and psychiatric and substance abuse hospitals.

“Of course, OSHA noted in its initiative that this 15% threshold could be adjusted or terminated based on COVID-19 case rates, establishment density or similar criteria present in a particular region, or based on new information or developments regarding COVID-19,” Dickie said. “And as Fisher Phillips’ OSHA Inspection Tracker shows, the actual percentage of inspections on average for all regions was somewhere closer to 6% than 15%.”

Even though the initiative has ended, long-term care providers remain under OSHA scrutiny, the attorney said.

“OSHA is continuing to monitor workplaces for COVID-19. The initiative was clearly targeted to provide justification for either a final rule closely mirroring the OSHA healthcare [emergency temporary standard] or a preliminary rule covering infectious diseases,” Dickie said.

OSHA may move forward on the healthcare emergency temporary standard by November, he noted. Several industry associations, including the American Health Care Association / National Center for Assisted Living, the American Seniors Housing Association, Argentum and LeadingAge, have provided feedback to the agency, with some calling its proposed rule’s requirements “overly prescriptive” and confusing.

“Employers in this space should continue to monitor, and, where necessary, update their COVID-19 plans. OSHA has indicated repeatedly that it prefers those in the senior living and care space to voluntarily comply with the now-expired OSHA healthcare ETS,” Dickie said. “This provides employers with many good practices to follow while we wait for the new proposed infectious disease standard from OSHA. Specifically, employers should review their respiratory program, [personal protective equipment] practices, ventilation, and recordkeeping and reporting practices.” 

In addition to the aforementioned advice for navigating OSHA scrutiny, Dickie and Patrick M. Dalin, of counsel with Fisher Phillips, wrote in a recent article that providers should:

  • Have a plan in place for when an OSHA inspector arrives at the door, such as designating in advance the managers who will be responsible for attending the opening conference, communicating with OSHA and responding to the agency’s requests for documents and information.
  • Formal interviews with managers can be scheduled for a later date. No need exists to allow OSHA to interview managers during the first visit to the work site.