More OSHA Scrutiny on Healthcare Organizations, Expanded Whistleblower Protections

By Brian Ward

In March, OSHA issued its Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19). The updates extend existing OSHA protections for workplace safety whistleblowers, explicitly stating those protections apply to those who report COVID-19 related violations at the workplace by creating a National Emphasis Program (NEP).

In addition, the memo also classifies industries based on the inherent COVID-19 risks for their workers. Naturally, those in the healthcare industry are considered at higher risk. This means that healthcare clinics and hospitals should expect more OSHA scrutiny, and possibly more OSHA surveys, than before. Whenever practical, OSHA will perform on-site surveys, but remote or partially remote surveys will also be an option.

“The NEP targets establishments that have workers with increased potential exposure to this hazard,” according to the update. “In addition, this NEP includes an added focus to ensure that workers are protected from retaliation and are accomplishing this by preventing retaliation where possible, distributing anti-retaliation information during inspections, and outreach opportunities, as well as promptly referring allegations of retaliation to the Whistleblower Protection Program.”

The update took effect March 12, 2021 and will remain in effect for 12 months. In 2020 alone, OSHA collected over $3.5 million in COVID-19-related fines, with two New Jersey hospitals fined $13,000 and $25,000, respectively.

We spoke with OSHA expert Marge McFarlane, PhD, MT(ASCP), CJCP, CHSP, CHFM, MEP, HEM, about what these changes will mean for healthcare employers and employees. McFarlane is the principal of Superior Performance in Eau Claire, Wisconsin, and senior consultant with Compass Clinical Consulting in Cincinnati.

This Q&A has been lightly edited for clarity.

• 29 CFR Part 1904, Recording and Reporting Occupational Injuries and Illness
• 29 CFR § 1910.132, General Requirements-Personal Protective Equipment
• 29 CFR § 1910.134, Respiratory Protection
• 29 CFR § 1910.141, Sanitation
• 29 CFR § 1910.145, Specification for Accident Prevention Signs and Tags
• 29 CFR § 1910.1020, Access to Employee Exposure and Medical Records
• Section 5(a)(1), General Duty Clause of the OSH Act

Q: What does the update hope to accomplish?

McFarlane: I think it is to bring a more consistent enforcement for worker safety rather than [rely] on the General Duty Clause, which is a little bit vague. With the NEP I think they’re hoping to bring more specific guidelines. [The update says] that when they come, they are specifically asking these questions, like “What is your social distancing policy?” rather than the General Duty Clause that just says, “Protect your workers.”

So if I’m an employer and I see these five or six questions [in the update,] they’re much more focused and prescriptive. That’s what I think the NEP brings to this whole disease issue.

Q: Do these changes mean healthcare organizations should expect more OSHA surveys? And will they be looking for non-COVID-19 problems as well?

McFarlane: Absolutely. It is my opinion that now with this NEP, it has given OSHA a charge where they need to go out—especially on complaints of employers not providing the right personal protective equipment (PPE) and the right protocols.

[Healthcare organizations should] expect a follow-up inspection and possibly phone call or letter first, but an in-person inspection for the things [listed in the update].

But your question to me was “If they see something [not related to COVID-19,] can they be cited?” And if there’s some obvious violation going on like bloodborne pathogens or hazardous chemicals, they will absolutely be referred for citation. They might cite them that minute, [but] they have the option to refer them for additional citation.

Have you seen the OSHA summary of citations for 2020? Just as an FYI, the proposed fines are over $4 million. Specifically, they’re charging people for:

• Not having a written respiratory protection program when workers are wearing N95 masks
• Not including when people get COVID-19 in their OSHA 300 log

What is happening, in my opinion, is there is just a more cohesive approach to high-risk worker safety. The hope is this will standardize things nationally. But the CDC’s guidance is only a guideline. It is still a state-by-state decision what laws they pick, and some are less stringent than others. But OSHA is the force of law in all states no matter what their politics are, so they have 60 days from the date of this initiative to tell the feds how they’re complying with this. Remember, this NEP is in effect for a year.

Q: Is there any sign that this would be something that they would consider continuing? As a way of making everyone follow the same standard state by state?

McFarlane: One would hope. They’ve been talking about a national OSHA disease standard for quite some time. California is the only state that has an infectious disease standard, and that was passed in 2009 after H1N1. But California is the only one out there; the rest of them are kind of left to their own devices, and they fall under the General Duty Clause that says you have to provide a safe workplace.

This [update] is really an effort to say “You need to protect your workers.”

Q: What do these whistleblower protections in the update do? Are they new protections or extensions of existing protections?

McFarlane: There are people who have brought [COVID-19 violations] to the attention of OSHA and regulators and have been fired and harassed for it. All whistleblower protections are important and are already on the books; they’re not new. It’s just the emphasis that “This totally applies to COVID-19 also and we’re keeping our eyes on you.”

Whistleblower protection has been around since probably about 1998. But it’s a reminder to people that people have a right to a safe and healthful environment. So now [the federal government] is saying that “We will fund more [OSHA] inspections, and these are our expectations for providing a safe workplace.” Whistleblower protection is being highlighted so that people will take you providing PPE to their workers more seriously.

Q: So the update is making it clear that existing whistleblower protections also apply to COVID-19 cases?

McFarlane: Correct.

Q: Do you think OSHA will keep remote or semi-remote surveys as an option, even after COVID-19? If there’s another pandemic, for example?

McFarlane: I don’t know. I think this is all groundbreaking where they’re doing remote inspections. Whether they will keep that now, if they’ve developed a process now, one would think they would have that in the books that they could brush off if they needed it again.

Q: Is there anything else you’d like to say?

McFarlane: My recommendation to people is that they take a look at the new requirements, do a gap analysis on their plan. The new rules say you need to have a COVID-19-specific infection prevention plan; it doesn’t matter if it is an annex of your emergency management plan or part of your infection prevention plan or if it is a stand-alone plan. But you can’t just say “This is covered in my infection prevention plan” without specifically talking about social distancing, wearing masks, handwashing, and cleaning high-touch surfaces. You don’t need a stand-alone plan, but you have to be sure all of these elements are included. Including, “if I get sick on the job, who am I telling? How am I isolating myself from my co-workers?”

We are wearing more PPE than we used to, and if you’re a clinical person, you know exactly what it means to don and doff. If you’re working in materials management, you’re not necessarily a clinical person. When I told somebody to don a vest for an emergency management drill, he didn’t know who Don was and why he put on his vest.

PPE was not natural for some of the job brackets in the hospital, so make sure that your nonclinical people know how to wash their hands properly, put on PPE, and take it off and dispose of it properly.

Brian Ward is editor of Medical Environment Update, an HCPro publication.