New England Biz Law Update
OSHA has announced that COVID-19 enforcement is the agency’s top priority for 2022.
The program will involve inspection of “high hazard” employers and further inspection of health care employers that have received COVID-19 complaints in the past.
To open an inspection against an employer, OSHA must have a complaint, injury/illness report, or other “neutral” basis for conducting the inspection.
Starting in July 2021, OSHA began inspections under its National Emphasis Program for COVID-19, focusing on certain “high hazard” industries, including health care, nursing care, warehousing, meat processing and manufacturing.
According to some reports, at least 15% of each OSHA office’s enforcement resources are focused on COVID-19 inspections.
Memo for health care employers
In March, OSHA released a supplement to its program: COVID-19 Focused Inspection Initiative in Healthcare.
The memo lays out instructions for federal OSHA area offices to engage in a focused, short-term inspection initiative for hospitals and skilled nursing care facilities that treat COVID-19 patients.
In the memo, OSHA says that its goal is to mitigate the spread of COVID-19 and future variants and protect the health and safety of health care workers. The initiative involves evaluating employer compliance efforts and abilities to handle any future surges of the virus.
OSHA has created a list of all health care and nursing entities that have been sent an OSHA complaint letter related to COVID-19 since March 2020. The agency is now randomly selecting employers from the list to open inspections following the old complaints.
An employer has the option to require OSHA to obtain a search warrant before an inspection, and you can also attempt to enforce the warrant in federal court, but there is limited case law on the issue.
Health care employers should expect ongoing OSHA inspections related COVID-19 and be prepared to defend themselves against any allegations.
To prepare, they should review all record-keeping rules and confirm compliance with them, including OSHA Form 300 logs and COVID-19 logs.
If an inspection takes place, assign someone at the worksite to welcome inspectors when they arrive, engage the compliance officer and determine the scope of the inspection. Also, be sure to confirm that OSHA has a neutral, lawful reason for the inspection.
