OSHA Cites Ohio Nursing Homes for Mask Violations

Nancy Cleeland By Nancy Cleeland July 24, 2020

​A group of nursing homes in Ohio was cited by the Occupational Safety and Health Administration (OSHA) for failures related to the use of N95 respirator masks, including allowing staff to wear the same masks for seven straight days.

The three jointly owned homes also failed to conduct proper fit testing for the medical-grade face masks worn by staff and did not develop a written respiratory protection program, as required in health care settings.

"OSHA's investigation found that, although the company was making efforts to protect its employees from the coronavirus, it had not fully implemented an appropriate respiratory protection program," said Howard Eberts, OSHA Cleveland area office director. The agency proposed $40,482 in penalties but encouraged a settlement.

It was the second set of citations issued by OSHA in relation to COVID-19 since the pandemic began. The first was issued May 21 against a nursing home in Georgia for failing to report the hospitalizations of staff members within 24 hours.

OSHA has received more than 7,000 complaints of unsafe working conditions related to the coronavirus. About 1 in 4 were filed by employees in the health care industry, including in nursing homes. More than 6,000 of the complaints have been resolved, in most cases informally, according to a Department of Labor spokesman.

In addition, employees have filed 18,300 complaints related to COVID-19 to state occupational safety and health agencies. (Twenty-eight states operate their own occupational safety and health programs under agreement with OSHA.) Of those, nearly 1,500 have been closed.

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Coronavirus and COVID-19

More Coronavirus Citations Likely

So far, federal OSHA investigators have launched 116 inspections based on COVID-19 complaints, while state agencies have launched 510.

OSHA enforcement officials have up to six months from the inspection to issue citations, and experts speculated that more citation announcements could be coming soon.

"Employers should understand that this is just the beginning of OSHA's COVID-19-related citations," said Chantell C. Foley, an associate with Fisher Phillips based in Louisville, Ky.

[SHRM members-only Q&A: What are the OSHA record-keeping requirements for cases of COVID-19 in the workplace?]

Foley advised employers to take a fresh look at all relevant OSHA rules and guidelines, including reporting requirements, and follow them diligently.

"They must report incidents to federal OSHA when an employee fatality occurs on the job within eight hours of the accident, or when an employee suffers a work-related, in-patient hospitalization, amputation or loss of an eye within 24 hours," she noted. "Just like all in-patient hospitalization admissions, if an employee is hospitalized because of COVID-19, and the employee contracted COVID-19 while at work, the employer must report that in-patient hospitalization to OSHA, but only if the hospitalization occurs within 24 hours of the employee contracting the virus."

Reporting requirements may differ if the employer is covered by a state plan, Foley added. In Kentucky, for example, employers have 72 hours to report an in-patient hospitalization for a work-related illness or injury.

"Employers should also reference the most recent OSHA guidance on record-keeping enforcement for assistance in determining whether a case of COVID-19 is work-related," she said. "The guidance highlights that certain types of evidence weigh in favor of or against work-relatedness."

Respiratory Protective Equipment a Priority

Employers in the health care industry should be especially vigilant about following safety and health requirements related to the coronavirus pandemic, said Gina A. Fonte, co-chair of the OSHA, workplace safety and whistleblower team at Holland & Knight.

"Because health care employers are perhaps the most likely to receive citations related to COVID-19, based on the current volume of federal and state OSHA investigations into employee hospitalizations due to COVID-19, employers should be aware of existing OSHA standards, which may apply to mitigating workplace exposures," she said.

"Noncompliance with OSHA's personal protective equipment standards—and, in particular, respiratory personal protective equipment—is one of the top areas of OSHA investigation and potential OSHA citations related to COVID-19.  Employers would be well-advised to undertake a job-hazard analysis related to their workplace to determine what respiratory personal protective equipment may be required for employees to safely perform their job duties."

In late June, OSHA released a  return-to-work booklet that advised all employers to conduct a thorough workplace-hazard assessment that examines the potential COVID-19 exposures for each job category and outlines protective measures.

"Workplaces that previously may not have required respiratory personal protective equipment [PPE] in the performance of a job task may now have newly created requirements for respiratory PPE as a result of COVID-19," Fonte said. Employers in health care should consult an OSHA guide that lists required protections for workers in that industry, she advised.

Employers should also keep in mind that if medical-grade respirators are required for employees to safely perform their work duties, employers must provide the masks, perform certain medical testing on the employees, have the masks fitted and tested, and train the staff members in putting them on and taking them off, Fonte noted.

"In cases of personal protective equipment shortages or supply challenges," she added, "OSHA will consider the employer's ability to demonstrate good-faith efforts toward compliance, as well as the employer's good-faith efforts to consider other alternative safety measures."

Related SHRM Articles:

New OSHA Guidance Clarifies Return-to-Work Expectations, SHRM Online, June 2020

California Employers Face Different COVID-19 Reporting Requirements, SHRM Online, June 2020

Virginia Adopts COVID-19-Related Workplace Safety Mandate, SHRM Online, July 2020



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