As the COVID-19 healthcare pandemic continues with no end in sight, the Occupational Safety and Health Administration (OSHA) has been looking at the nation’s nursing homes closely regarding the number and rate of employee deaths and illness from COVID-19. This has resulted in an increasing number of nursing homes receiving investigations by OSHA.
Recently, OSHA issued temporary enforcement guidance related to the COVID-19 pandemic for Recording and Reporting Occupational Injuries and Illnesses required under 29 CFR Part 1904.
This new updated recording guidance remains in effect until further notice. It is important to note that these guidelines are in addition to OHSA’s standard reporting and recording guidance, and do not replace them.
The Centers for Medicare & Medicaid Services (CMS) website, Nursing Home Compare, recently began posting information regarding COVID-19 deaths and incidences for both residents and nursing home employees. Eighty percent of facilities have submitted their COVID-19 data directly to CMS. It shows for the week ending May 30, 2020 that 450 nursing home staff died from COVID-19, and over 34,000 nursing home workers tested positive for the disease.
Given these staggering numbers, it is no surprise OSHA has taken a strong interest in the effects of COVID-19 inside long-term care (LTC) facilities and is increasing the number of nursing homes receiving investigations. From the nursing home perspective, however, these investigations often feel overly burdensome and punitive. Most of the investigations focus on employee injuries that occurred during the initial stages of the pandemic while most nursing homes were struggling to obtain personal protective equipment (PPE) in competition with state governments and large healthcare organizations.
At that time, nursing homes were simultaneously being mandated by governors’ executive orders to accept all hospital transfers without the ability to test for or refuse admission on the basis of COVID-19. Finally, after months of grueling and tragic work on the front lines of the pandemic with the most vulnerable populations, nursing homes have begun to return to normal with zero incidence of COVID-19. Instead of a well-deserved respite from the months of triage, nursing homes find themselves in an administrative nightmare responding to voluminous OSHA informational investigations and inquiries.
Faced with an OSHA investigation regarding the impact COVID-19 had on its employees, a facility can proactively prepare to respond. The adage “forewarned is forearmed” is apropos where OSHA COVID-19 investigations are concerned. Here are five objectives nursing homes can undertake to be prepared for an OSHA investigation:
- Understand OSHA’s regulatory role in LTC settings to investigate workplace safety, injuries, and death. https://www.osha.gov/laws-regs/regulations/standardnumber/1904
- Comply with OSHA’s ongoing reporting requirements using OSHA Form 300, 301A, and 301. https://www.osha.gov/recordkeeping/
- Be proactively prepared for an OSHA COVID-19 investigation under the Interim Enforcement Plan. https://www.osha.gov/memos/2020-05-19/updated-interim-enforcement-response-plan-coronavirus-disease-2019-covid-19
- Respond to the required investigation with appropriate documents and attestation.
- Understand the impact of OSHA’s Whistleblower Protection Program on OSHA investigations. https://www.osha.gov/Publications/OSHA3638.pdf
OSHA’s basic requirements for recording cases of COVID-19
OSHA requires the use of Form 300, 301A, and 301 for reporting and keeping track of workplace injuries, deaths, and illnesses as follows:
- Employers with more than 10 employees must keep a record of work-related injuries and illnesses using OSHA’s form 300.
- Employers must enter each recordable injury or illness on the OSHA 300 within 7 days of receiving information of an occurrence.
- Form 301A (Summary of Work-Related Injuries and Illnesses) must be posted in the building from February 1st through April 30th annually.
- Use Form 301 for the injuries and illnesses incident report.
- Employers must save all OSHA forms for 5 years.
Employers are responsible for recording cases of COVID-19 if all the following are met:
- The illness is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC)
- The case is work-related, as defined by 29 CFR § 1904.5
- The case involves one or more of the recording criteria set forth in 29 CFR § 1904.7 (e.g., death, hospitalization, medical treatment, days away from work)
To determine whether a COVID-19 case is work-related, the employer must conduct a reasonable and good-faith investigation into whether exposure occurred in the workplace, or can it be attributed to factors existing outside the workplace. OSHA guidance explains how to evaluate the evidence obtained from the investigation, stating that COVID-19 illnesses are likely work-related when several cases develop among individuals who work within close-proximity to each other, and there is no alternative explanation.
Another possible work-related situation to consider:
- An employee performing assigned work tasks who has frequent, close exposure to the general public where there is ongoing community transmission, and there is no other explanation, e.g., an employee doing recruiting, marketing, or is a community liaison for the employer.
The following COVID-19 illnesses are likely not work-related:
- The employee is the only worker to contract COVID-19 in that vicinity whose job does not include frequent contact with the public, regardless of the rate of community spread.
- The employee frequently associates with a non-coworker, e.g., a family member, significant other, or close friend, during the period when that person was likely infectious with COVID-19.
What constitutes a “reasonable” employer investigation to determine a COVID-19 work-related injury?
OSHA guidance advises that the following is sufficient upon learning of an employee’s infection:
- Ask the employee how they believe they contracted COVID-19.
- Discuss with the employee which of their in-work and out-of-work activities may have led to the COVID-19 illness (be general enough to respect the employee’s privacy).
- Review the employee’s work environment for potential COVID-19 exposure, noting any other workers in that environment who contracted COVID-19.
If, after conducting a reasonable and good faith investigation, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer can choose not to record that COVID-19 illness.
As soon as an employer learns of a possible COVID-19 injury, it has only five (5) days to determine whether it is work-related for Form 300 recording purposes. The employer should conduct an initial investigation for all possible causation factors, including all non-work-related factors as described above. The investigation should weigh work-related factors against non-work-related factors. If the employer is unable to substantiate the injury was caused by work-related factors, then the employer may choose not to record the injury. However, the employer should carefully document the investigation to substantiate the decision not to record or report should OSHA look into the incident at a later date.
What constitutes an injury for OSHA COVID-19 purposes?
An injury for OSHA COVID-19 purposes includes:
- Missed work due to a positive COVID-19 test
Although not an injury, OSHA will also investigate complaints of unsafe working conditions due to COVID-19, including complaints from employees who do not want to return to work based on allegations that the workplace is not safe.
OSHA letter to employers regarding an investigation of COVID-19 activities
When OSHA suspects that there is a work-related COVID-19 illness, they send the employer a letter regarding COVID-19 activities. The letter consists of the following:
- A list of the violations and/or hazards that are suspected
- A request for an immediate investigation of the alleged conditions
- A request for the employer to make any necessary corrections or modifications
- A request that the employer reply in writing by a determined date to convey the results of the investigation
- A request for the supporting documentation of the employer’s investigation, e.g., photographs or videos and descriptions of any corrective action taken or in process, including documentation of corrective actions
If the investigation is related to an employee complaint, OSHA will include with the initial letter an attestation/certification form. This is not included when the investigation relates to an injury, such as contracting COVID-19 or a COVID-related death. Employers are instructed to post the attestation form in a conspicuous place for ten days, or until issues are corrected.
OSHA usually allows no more than a week to 10 days to respond. Employers should ensure that the initial OSHA inquiry is acted upon timely by designating a person knowledgeable about OSHA to receive all OSHA correspondence. Administrative staff should forward all OSHA letters to the designated point person.
Documentation required by OSHA is significant, resulting in OSHA COVID-19 investigations being considered burdensome. The following and possibly more will be requested:
- The LTC facility’s written pandemic plan. If the plan is part of another emergency preparedness plan, then the entire plan should be provided.
- Procedures for hazard assessment and protocols for Personal Protective Equipment (PPE) use with suspected or confirmed cases of COVID-19.
- Laboratory procedures for handling specimens and procedures for decontamination of surfaces if a facility has handled specimens with suspected or confirmed COVID-19.
- Respiratory protection program and any modified respiratory policies related to COVID-19 exposure or prevention.
- Employee training records, including any records of training related to COVID-19 exposure, prevention, or in preparation for a pandemic.
- Documentation of attempts to obtain adequate supplies of PPE.
- Procedure for use of any airborne infection isolation rooms and any testing procedures.
- Procedures for transferring patients to other facilities when appropriate isolation rooms/areas are unavailable or inoperable, and procedures for transferring COVID-19 patients from other facilities.
- Numbers and placements of confirmed or suspected COVID-19 patients under isolation at the time of inspection.
- Pattern of placements for confirmed or suspected COVID-19 patients in the preceding 30 days.
- Other relevant information such as medical records related to worker exposure incidents, OSHA-required recordkeeping, or other pertinent information or documentation that OSHA may deem appropriate to investigate.
If a severe injury report needs to be made to OSHA, call the nearest OSHA office, the 24-hour hotline, or file the report online, which is recommended choice. Be prepared with the following information:
- Business name
- Names of employees affected
- Location and time of the incident
- Brief description of the incident
- Contact person and their phone number
OSHA’s whistleblower protection program and cautions against retaliation
Employers are prohibited from retaliating against or terminating workers for raising concerns about their safety. The OSHA Whistleblower Protection Program urges workers who suffer retaliation after reporting a safety concern to submit a complaint to OSHA as soon as possible. Significant changes in duties or responsibilities, poor undeserved evaluations, failure to promote, or uncalled-for disciplinary actions are examples of reportable complaints.
A facility must train staff and be responsive to their concerns regarding OSHA’s COVID-19 Guidance for Nursing Home and Long-Term Care Facility Workers alert, which can be viewed at https://www.osha.gov/Publications/OSHA4025.pdf
An employee is typically required to file their complaint within legal time limits, which may be as short as 30 days from the date the employee learned of or experienced retaliation. LTC employers are encouraged to use this information to be better prepared to manage risk, both during and in the aftermath of COVID-19.
Jo Ann Halberstadter is general counsel of Med-Net Concepts LLC. She received her J.D. from the University of Pennsylvania Law School and a B. A. in linguistics from Cornell University. She served a judicial clerkship under the Honorable Philip S. Carchman, Superior Court of New Jersey, Mercer County.