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OSHA Health-Care Virus Safety Inspections Mount in Hard-Hit NY

May 27, 2020, 5:05 PM

Reports of increased deaths and hospitalizations of medical workers infected with coronavirus have prompted unprecedented numbers of federal workplace safety inspections at health-care facilities.

Federal OSHA nationwide opened 253 inspections of health-care facilities from March 16 through May 19, with 219 linked to worker deaths or hospitalizations of at least three workers from the same location, agency enforcement data shows. Of these new inspections, hospitals accounted for 121 federal cases while 81 inquiries were at nursing homes and other long-term residential care facilities.

During the same time span in 2019, OSHA opened only five health-care fatality and hospitalization cases.

Most of those federal cases are in New York and New Jersey—the two states hit hardest by the Covid-19 pandemic—where there have been 81 and 77 new inspections, respectively, since March 16. OSHA Region 2 Administrator Rich Mendelson is overseeing inspections in those two states.

More than 100 compliance officers in Region 2 are handling Covid-related incidents, and they’re getting support from staff in OSHA’s nine other regions who are handling complaints remotely, Mendelson told Bloomberg Law.

“These measures are providing Region 2 staff with additional capacity to focus on fatality investigations,” Mendelson said in written responses to questions.

Other states with 10 or more federal health-care inspections include Illinois with 25, and Florida with 10. OSHA’s state government counterparts opened 194 health-care facility inspections. California accounted for 55 cases, while 34 were opened in Washington and 13 in Michigan.

OSHA had logged 948 virus-related complaints against Region 2 employers in all industries as of May 25, OSHA numbers show. For the entire nation, federal OSHA had received 4,326 complaints involving virus allegations and another 565 referrals from employers or government agencies.

The administrator said it’s too early to point to common alleged violations among the health-care sites.

Nationwide, OSHA has about 960 inspectors and immediate supervisors, according to the agency.

Promoting Consistency, Safety

Mendelson said that when the agency gets a virus-related report, the first step is a review by the regional office followed by an opening-conference done by phone and sending a standardized information collection letter to the employer.

“This method helps promote consistency, safety of our staff, and efficiency,” Mendelson said.

While typical OSHA inspections are done in person, OSHA’s guidance for handling Covid-19 inquiries calls for much of the initial work, such as preliminary interviews and paperwork reviews, to be done remotely to protect inspectors from exposure to the virus and to not interfere with patient care.

If OSHA decides to launch an in-person inspection, the visit is generally assigned to a team of compliance officers, Mendelson said. Before an inspection, the OSHA team conducts its own hazard analysis before the inspection to determine what personal protection gear the inspectors should bring with them to avoid potential infections.

For inspection visits, OSHA has instructed inspectors to not enter rooms occupied by Covid-19 patients and to enter airborne infection isolation rooms only after a discussion with OSHA supervisors or assurances the room has been purged of potentially contaminated air.

Possible Citations

OSHA officials recently have said health-care facilities could be cited for failing to adhere to OSHA rules for using respirators and other types of protection gear and preventing the spread of bloodborne diseases.

While OSHA doesn’t have a rule directly covering airborne diseases such as the coronavirus, the agency could use a provision of OSHA law called the general duty clause to cite an employer who fails to protect workers from a known deadly hazard that can be feasibly prevented.

Mendeslon and OSHA haven’t offered a timeline for when citations will be issued. Once OSHA opens an inspection, the agency has up to six months to issue citations.

OSHA enforcement data shows that when the general duty clause is cited against health-care employers in complicated cases such as workplace violence allegations, OSHA often uses the full six months to issue citations.

While employers are expected to correct cited violations, in general, workplaces contesting allegations don’t have to make changes until after a settlement is reached or the employer exhausts its court appeal.

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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