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OSHA Issues Inspection Guidelines for Virus Health-Care Rule (1)

July 1, 2021, 6:24 PM; Updated: July 1, 2021, 8:20 PM

Health-care providers should expect federal OSHA inspectors conducting inspections under the agency’s new Covid-19 emergency rule to demand a wide range of information, from the qualifications of their in-house safety officials to proof that air-conditioning system filters have been changed.

New inspection procedures for the Occupational Safety and Health Administration’s Covid-19 emergency temporary standard for health care, which took effect June 21, were detailed in an agency compliance directive released Wednesday. Enforcement of the standard begins July 6.

While the directive was intended for OSHA staff, the 67-page document shows employers and safety consultants what to expect if a qualifying provider is inspected. In general, the standard applies to hospitals and ambulatory medical clinics that can’t reschedule patients with potential Covid-19 symptoms, along with skilled-care nursing homes.

The emergency rule requires many health-care employers to implement a written Covid-19 infection prevention program, report Covid-19 cases to OSHA, and pay workers when a confirmed or suspected diagnosis makes them unable to work.

Those plans must cover areas of concern such as controls for aerosol-generating medical procedures, physical distancing, physical barriers, personal protective equipment, cleaning, disinfection, ventilation, health screening, training, recordkeeping, and reporting.

The directive explains that inspectors should conduct an in-person survey, but the guidance for inspectors doesn’t rule out the option of the inspection being done remotely to protect OSHA staff.

The guidance applies to any OSHA inspection where the Covid-19 standard could apply, including those prompted by worker complaints, referrals from other agencies, an employer’s report of a death or hospitalization, and work sites selected under the agency’s Covid-19 national emphasis program, which targets industries with high worker-infection rates.

Opening Moves

Once the agency commences an inspection, the opening conference should include inspectors talking with the facility’s safety director, infection control director, and the Covid-19 safety coordinator—a position mandated by the standard—the directive said. The inspector can also talk with employee representatives.

To determine whether the Covid-19 safety coordinator has been adequately trained, the inspector should interview the individual about their professional knowledge and background in infection control principles and practices, the directive said.

Steve Hawkins, vice president of the consulting company FDR Safety LLC in Franklin, Tenn., said most hospitals and medical facilities already have infection control specialists and departments that would satisfy OSHA’s requirements.

Employers may not realize that their supervisors don’t have to speak with OSHA inspectors during the opening conference, management-side attorney Travis Vance, a partner with Fisher Phillips in Charlotte, N.C., said. Being unprepared for the meeting could lead to supervisors making admissions without knowing the legal ramifications of their comments, he said.

Vance, a member of the firm’s Covid-19 task force, also said the directive indicates inspectors will pay particular attention to reviews of illness records and whether employers provided pay and benefits to employees who miss work because of Covid-19.

The directive said that during an inspection’s “walkaround” phase, the OSHA compliance officer is advised to look at how workers are wearing face coverings and photograph work areas to determine if required physical distancing measures are in place. Photographs of patients are prohibited.

Hawkins, who previously oversaw Tennessee’s state occupational safety agency, said it seems unlikely most OSHA inspectors would have the requisite knowledge and experience to evaluate a medical facility’s ventilation system because the machinery is complicated and difficult to access.

The directive showed that employers have latitude in satisfying OSHA requirements for screening patients for Covid-19 and determining if employees are fully vaccinated.

Acceptable proof of workers being fully vaccinated includes asking an employee and then documenting their status, keeping photocopies of the worker’s vaccination card, and requesting that the employee provide other evidence, such as a letter from a physician or vaccination provider.

A facility’s screening of patients and other non-employees entering a building may include visitors self-monitoring their temperatures, filling out health surveys upon their arrival, and using online monitoring systems that require non-employees to self-report symptoms or exposures prior to arrival.

(Updates with additional reporting in paragraphs 10-12 and 14.)

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

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Travis Tritten at ttritten@bgov.com

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