Member Article

The Occupational Safety and Health Administration (OSHA) is making a concerted effort to investigate coronavirus-related cases in which employers allegedly inadequately protected their workers from the pandemic, according to USA Today.[1] A total of 192 COVID-related inspections were launched between Feb. 19 and April 23. The health care industry, including hospitals, skilled nursing facilities, and assisted living facilities, appears to be the focus of the OSHA investigations. Specifically, the inspections target nearly 50 hospitals and two dozen nursing homes.

The agency told USA Today it “continues to field and respond to complaints, and will take the steps needed to address unsafe workplaces, including enforcement action, as warranted.” OSHA said it has been “acting to protect America’s workers by providing extensive guidance to employers and workers on COVID-19 response.”

OSHA requirements for health care facilities are detailed and regulate, among other things, reporting of work-related deaths and use of personal protective equipment (PPE). The guidance is also evolving, including employer-reporting obligations and compliance with regulations.

On April 16, the Department of Labor issued interim guidance related to discretion in enforcement when an employer makes good-faith efforts to comply with applicable OSHA standards where compliance was not possible.[2] On April 24, the Department of Labor issued additional enforcement guidance for the health care industry related to decontamination of filtering facepiece respirators.[3]

These shifting requirements and increased investigations have implications for potential tort liability. Alleged safety violations may serve as the basis of a claimed deviation from the standard of care in a negligence claim and could have implications for a facility if a patient or resident becomes infected as a result. As OSHA is primarily investigating safety violations that led to unnecessary infection among employees, residents, or patients, the potential liability for the facility may expand beyond just an enforcement action by OSHA. The residents or patients who have suffered injury may then look to hold the facility liable predicated on the commission of safety violations. In some states, employees may be limited to workers’ compensation remedies. In others, such as Ohio, there are circumstances under which the employee could also attempt to pursue intentional tort claims against an employer.

In the face of this shifting guidance and increased investigations, health care businesses will want to be diligent in their compliance, including with their reporting obligations and recordkeeping. For specific questions about managing workplace safety, health care obligations, tort liability, or OSHA obligations, please contact your Dinsmore attorney.

[1] https://www.usatoday.com/story/news/nation/2020/05/01/workplace-coronavirus-related-deaths-under-investigation-osha/3056655001/

[2] https://www.osha.gov/memos/2020-04-16/discretion-enforcement-when-considering-employers-good-faith-efforts-during

[3] https://www.osha.gov/memos/2020-04-24/enforcement-guidance-decontamination-filtering-facepiece-respirators-healthcare