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Worker Deaths, Illnesses Drive Health-Care Virus Inspections

July 17, 2020, 6:40 PM

Inspections of health-care facilities by federal and state workplace safety officials are mounting and most have been prompted by Covid-19 issues.

Federal OSHA and its 28 state and territory counterparts opened 880 health-care inspections since March 15 when coronavirus stay-at-home orders became common, through July 9.

Despite the high inspection numbers, federal OSHA as of Friday had cited only one employer—a Georgia nursing home fined for allegedly not reporting to OSHA within one day the hospitalization of six employees.

The number of citations should start increasing in September and October when the six-month window to issue those citations arrives from the initial wave of inspections in March and April, according to attorneys who represent health-care businesses.

The new inspections indicate that while OSHA is slowly resuming normal enforcement activities such as construction site checks, health-care inspections continue to be a priority as the agency responds to reports of worker deaths and hospitalizations and complaints about employers not adhering to safety guidance.

Federal OSHA started 460 inspections, while states and territories initiated 420. The pace of inspections hasn’t slowed: There were 260 inspections in April and 258 in June. The death of a worker or the hospitalization of multiple employees prompted the inspections in at least 51% (449) of the cases.

Hospitals accounted for 44% (390) of the inspections and nursing homes 27% (237). Outpatient treatment facilities tallied 18% (157) of the inspections.

Among the federal inspections, New York accounted for 143 inspections while 130 took place in New Jersey. Other states were in single or double digits, including 45 in Illinois, 21 in Ohio, 20 in Florida, 17 in Massachusetts, and 13 in Texas.

California had the most state inspections at 145, followed by Washington with 58.

OSHA didn’t respond to requests to discuss its inspections.

‘Good Faith’ Defense

John Ho, chair of the occupational safety group at Cozen O’Connor P.C. in New York City, pointed out that federal OSHA and the Department Labor have said that OSHA’s general duty clause will be the primary tool for citing employers since there isn’t a specific Covid-19 rule to use.

The law requires employers to provide workplaces that are free of known, potentially serious hazards that can be feasibly mitigated. OSHA has successfully used the rule in cases involving workplace violence at clinics and hospitals.

Because general duty clause citations often are contested in court, Ho said federal OSHA supervisors and DOL attorneys are taking their allowed time to review citations.

“If they issue a general duty clause citation, you can be sure it has been vetted by the solicitor’s office,” Ho said.

An employer’s best defense against a general duty clause citation is showing the company made a good faith effort to comply with guidance from OSHA and the Centers for Disease Control and Prevention, said Gina Fonte, co-chair of Holland & Knight L.L.P.’s OSHA, Workplace Safety and Whistleblower Claims team in Boston.

A business may need to show it conducted a job hazard analysis and followed the guidance to make physical changes to the workplace, such as partitions, and conducted training and provided protective equipment, Fonte said.

Track Changes, Compliance

Proving guidance was followed is complicated by frequent changes to that federal guidance, said attorney Travis Vance, co-chair of Fisher Phillips L.L.P.’s workplace safety group in Charlotte, N.C.

For example, OSHA has issued three different sets of guidance for when employers must list workers who missed time from the job because they were infected by coronavirus on the job, and the agency has issued several updates to rules and guidance on N95 respirators.

An employer must document that it updated its practices as guidance changed and that it was following the relevant recommendations when the alleged violation occurred, Vance said.

The attorneys said they expect OSHA to consider citing employers under several other rules that apply to health-care settings, including respirator use, protecting workers from hazardous chemicals and bloodborne pathogens, and keeping accurate records of when workers miss time from work because of illnesses.

Vance cautioned that if OSHA inspectors believe problems at one hospital could be present in other facilities operated by the same owner that may prompt OSHA to open inspections at the related facilities.

Fonte said an inspection that’s prompted by a complaint could be expanded to include other potential problems spotted by inspectors.

Case Study

Future coronavirus cases could be similar to a 2017 OSHA general duty clause citation case.

After a nurse technician died from a Clostridium difficile (C. diff) bacterial infection that causes inflammation of the colon, OSHA opened an inspection of the hospital where she worked—St. Elizabeth Medical Center in Utica, N.Y.

Enforcement records show that OSHA determined the technician had cared for a patient suspected to be infected with C. diff in mid-June and that the hospital hadn’t protected its staff from contracting the bacteria by requiring workers coming in contact with the patient to wear gloves and gowns and sanitize their hands.

Like with Covid-19, OSHA doesn’t have a rule specifically covering C. diff, but the general duty clause allowed the agency to cite St. Elizabeth’s.

About six months after the technician was infected, OSHA issued a general duty clause citation and proposed a $12,675 fine. St. Elizabeth’s agreed to make changes recommended by OSHA and the case was closed with the hospital paying an $11,000 fine.

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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