Long-Term Care Facilities Brace for Additional OSHA Inspections Under Extended COVID-19 NEP

The Occupational Safety and Health Administration (“OSHA”) announced on June 30, 2022, that it was extending “until further notice” its revised COVID-19 National Emphasis Program (“NEP”), which had been set to expire on July 7, 2022. The move comes as OSHA is preparing, but has yet to publish a permanent healthcare standard for COVID-19, to replace the Emergency Temporary Standard for Healthcare (“Healthcare ETS”), most of which expired last December.

OSHA also stated that it was temporarily increasing its coronavirus inspection goal from 5% of all inspections to 10% of all inspections due to increasing COVID-19 hospitalization rates nationwide since mid-April, and CDC data that forecasts the possibility of significant increases in hospitalizations in the coming weeks. OSHA has stated that it would be prioritizing inspections at workplaces that present a higher potential for worker exposure to COVID-19 and specifically mentioned both nursing homes and assisted living facilities.

The NEP was originally issued on March 12, 2021, and was revised on July 7, 2021. Its purpose is to significantly reduce or eliminate worker exposure to the coronavirus in high-risk workplaces “where unvaccinated employees may have a high frequency of close contact exposures and therefore, controlling the health hazards associated with such exposures.” This is despite vaccine mandates imposed earlier this year by the Centers for Medicare and Medicaid Services (“CMS”) in healthcare facilities subject to Medicare and/or Medicaid certification.¹

The goal of the NEP is to be accomplished through a combination of inspection targeting, especially in workplaces that have experienced a fatality and workplaces that are the subject of complaints, as well as outreach to employers, and compliance assistance. In addition, the NEP includes a focus on ensuring that workers are protected from retaliation by distributing anti-retaliation information during inspections and promptly referring any allegations of retaliation to the agency’s Whistleblower Protection Program.

Despite the expiration of the majority of the provisions in the Healthcare ETS, OSHA has not further revised the NEP as part of its extension, and the NEP documentation states that inspections are to be conducted with reference to the Healthcare ETS. Accordingly, long-term care facilities, at a minimum, should ensure that their COVID-19 plan and all reporting are up to date and review that their respiratory protection plan and personal protective equipment policies are being fully implemented.

Rulemaking from OSHA on a permanent COVID-19 standard to replace the Healthcare ETS is expected sometime this summer.

[1] The CMS mandate applies to skilled nursing facilities under the Medicare program and nursing facilities under the Medicaid program, but does not apply to assisted living facilities, which are not regulated by CMS.