BY Micah Dickie, Associate, and Patrick Dalin, Of Counsel, Fisher Phillips
Federal workplace safety officials are placing Texas employers and healthcare organizations under increasing scrutiny – which means you need to develop a proactive plan to put yourself in the best position to respond. In a recent analysis, Bloomberg Law found that OSHA has already conducted more inspections of hospitals and nursing homes across the nation in 2022 than it did in all of 2021. The agency has already inspected 577 general and psychiatric hospitals in 2022, compared to a total of 332 inspections for all of 2021, and has inspected 729 nursing homes and assisted living facilities this year compared to 442 over all of last year. Moreover, Fisher Phillips’ OSHA Inspections 
Tracker shows that healthcare employers are the third-most-popular target for inspections in 2022, trailing only construction and manufacturing employers. Through July 8, 2022, OSHA conducted 184 inspections of health care facilities in Texas, which trailed only the State of New York in the number of OSHA healthcare inspections. With OSHA currently plowing ahead with its plan to issue a permanent standard aimed at COVID-19 exposure in the healthcare industry, what do Texas healthcare employers need to do?
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Where Are We Now?
The unprecedented wave of inspections in 2022 signals that OSHA continues to consider COVID-19 an enforcement priority. In March 2022, the agency launched its COVID-19 Focused Inspection Initiative targeting the healthcare industry — which no doubt contributed to the significant uptick in inspections. Under that initiative, which expired on June 9, OSHA directed its efforts to focused, partial scope inspections of hospitals and skilled nursing care facilities.
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These inspections looked at the employer’s COVID-19 plan, including any control measures that the employer had in place to prevent or reduce the spread of COVID-19. Because OSHA does not have a COVID-19-specific standard, the initiative indicated that OSHA was looking to cite employers under its standards for recordkeeping and reporting, PPE, respiratory protection, exposure, and medical records access, and under the OSH Act’s general duty clause.
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While OSHA withdrew most of its well-known COVID-19 Emergency Temporary Standard (ETS), it maintains that the recordkeeping and reporting requirements of the ETS remain in effect and can be cited. Fisher Phillips’ OSHA Inspections Tracker shows that the agency conducted 1,762 inspections of Healthcare and Social Assistance employers in the period March 2 through June 9, representing nearly 6% of all OSHA inspections in that time period.
Then, on June 30, OSHA announced that it was extending its COVID-19 National Emphasis Program (NEP), focusing its inspection targeting efforts on hospital and skilled nursing care facilities that treat or handle COVID-19 patients – while also signaling that a broader and permanent rule for the healthcare industry is on the horizon. Back in March of 2022, OSHA reemphasized the agency’s promise to devote 15% of its inspections per region to four healthcare-related NAICS classifications for the foreseeable future. Thus, despite the expired initiative above, OSHA’s extended COVID NEP enables OSHA to police Texas healthcare facilities’ COVID-19 protocols and documentation while the agency endeavors to fast-track a permanent COVID-19-related healthcare rule. During the announcement, OSHA indicated that it is attempting to finalize the permanent COVID healthcare standard by the fall – a nine-month turnaround for a process that takes several years.
Why should Texas healthcare employers be worried about this trend, particularly? Simply put: OSHA is conducting inspections in Texas at a much higher rate than elsewhere. Federal OSHA inspections in Texas year-to-date account for over 6.5% of all federal OSHA inspections. But more importantly, healthcare facilities were the third-most frequently inspected worksites of all inspections in the state.
What’s Next?
OSHA has not yet issued a new, proposed COVID healthcare rule. However, it has indicated that the rule will impact healthcare companies and other employers who have employees working in the healthcare setting. With OSHA’s plan still in place to issue a proposed rule and the continued increase in inspections of healthcare facilities, Texas healthcare employers should implement a seven-step plan to address mounting concerns, particularly employers with worksites utilizing the following NAICS classifications:
622110 General Medical and Surgical Hospitals
622210 Psychiatric and Substance Abuse Hospitals
623110 Nursing Care Facilities (Skilled Nursing Facilities)
623312 Assisted Living Facilities for the Elderly
For those employers and worksites, the following steps should be taken:
1. You should continue to monitor and, where necessary, update your COVID-19 plans. This review should include your respiratory program, PPE practices, and recordkeeping and reporting practices.
2. You should also make sure that all employees understand and follow the controls that you have put in place to prevent and control the spread of COVID-19.
3. You should have documented training records covering your COVID-19 plans, respiratory protection, PPE, and what to do when you have sick employees.
4. You should continue to exclude sick employees from your facilities.
5. You should communicate with employees when they have been exposed to COVID-19.
6. You should also have a plan in place for when an OSHA inspector arrives at your door. As part of that plan, you should designate in advance the managers who will be responsible for attending the opening conference, communicating with OSHA, and responding to OSHA’s requests for documents and information. Most importantly, the designated personnel should know in advance how to determine the proper scope of the OSHA inspection as discussed in the opening conference with the inspector and whom to call if they need advice or assistance regarding issues that may arise during the inspection.
7. During interactions with OSHA, you should adopt the following best practices to minimize the risk of manager statements being used to support a citation:
· If able and if time permits, have an attorney present during the OSHA inspection and have them provide most of the information to the inspector. OSHA generally cannot use statements made by attorneys as evidence.
· Formal interviews of managers can be arranged later. There is no need to allow OSHA to interview managers during their first visit to a worksite.
· When managers must speak during the opening conference and walk-around, limit what is said only to matters that are necessary to direct the inspector to the area of the facility within the scope of the inspection and arrange hourly employee interviews if requested.