By Adam R. Young, Brent I. Clark, and Craig B. Simonsen
Seyfarth Synopsis: Federal OSHA is rolling out an aggressive COVID-19 enforcement program to inspect “high hazard” employers, as well as re-inspect those healthcare employers who have received COVID-19 complaints in the past.
In March 2022 at the ABA OSHA conference, OSHA enforcement leadership publicly declared the “COVID-19 endemic” to be federal OSHA’s #1 enforcement priority for 2022. We have documented the agency’s continued mission creep to target hospitals and protect healthcare employees during the COVID-19 pandemic. Of course, OSHA cannot lawfully merely select hospitals and open inspections to ensure COVID-19 compliance. The Agency must have a complaint, injury/illness report, or other “neutral” basis upon which to inspect a facility.
OSHA has been rolling out inspections under its National Emphasis Program (NEP) for COVID-19 since July 2021. These inspections target certain “high hazard” industries, including health care, nursing care, manufacturing, warehousing, and meat processing. Each OSHA area office has allegedly dedicated at least 15% of its enforcement resources to programmed COVID-19 inspections. Based on the figures we are hearing at the Area Office level and our clients’ open inspections, we estimate that hundreds of these inspections are being performed by OSHA across the country, on top of the many COVID-19 inspections performed in OSHA state plan states.
On March 2, 2022, OSHA issued a COVID-19 Focused Inspection Initiative in Healthcare to supplement its COVID-19 NEP inspections. The memorandum provides instructions to Federal OSHA Area Offices for a focused, short-term inspection initiative directed at hospitals and skilled nursing care facilities that treat COVID-19 patients. OSHA’s stated goal in the Initiative is to mitigate the spread of COVID-19 and future variants, and ensure the health and safety of healthcare workers at heightened risk for contracting the virus. Through the Initiative, OSHA plans to assess employer compliance efforts, including the readiness of hospitals and skilled nursing care employers to address any ongoing or future COVID-19 surges.
For this initiative, federal OSHA assembled a list of every healthcare and nursing establishment that has received a complaint letter since March 2020. OSHA then has been using an algorithm to randomly select employers from this list. Employers have been surprised to have OSHA CSHOs opening inspections and explaining that the inspections are occurring based on allegations closed out more than two years ago! Employers should be aware that these inspections may be opened under the OSHA COVID-19 NEP and Focused Inspection Initiative, and they may need to take action to consult with counsel to ensure that the inspection is proceeding lawfully.
Employers always have the option of requiring OSHA to seek a search warrant and then enforce the warrant in federal court. In a warrant action, Tenet Healthcare challenged the enforceability of the COVID-19 NEP in federal court in Lubbock. The Court did not grant a Temporary Restraining Order against the OSHA inspection and Tenet later withdrew its complaint. Accordingly, the limited case law demonstrates the challenges with an aggressive litigation strategy.
Employers, particularly in health care, should prepare for ongoing OSHA inspections relating to COVID-19. For employers preparing to defend OSHA inspections, we recommend reviewing compliance with record-keeping obligations, including OSHA Form 300 logs and COVID-19 logs where applicable. If OSHA does come onsite, a designated point person should be professional when OSHA arrives, sit the OSHA compliance officer down in a conference room, and learn the scope of the inspection. Employers should confirm that OSHA has a lawful, neutral basis for the inspection, and consult with outside counsel to ensure the employer’s company is protected. OSHA inspection management is about focus and control, and keeping the inspection limited in scope. Consult qualified outside counsel if there are any questions relating to the OSHA inspection.
For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.