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OSHA’s Virus Protection Program Could Put Home Health Agencies Under the Microscope

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OSHA’s Virus Protection Program Could Put Home Health Agencies Under the Microscope

By Joyce Famakinwa for Home Health Care News

In response to an executive order from President Joe Biden, the Occupational Safety and Health Administration (OSHA) has launched a national emphasis program aimed at protecting workers from COVID-19 while on the job.

OSHA, part of the U.S. Department of Labor (DOL), is responsible for assuring “safe and healthy working conditions” for most workers in the U.S.

Hospitals, assisted living centers and nursing homes have received the bulk of attention throughout the public health emergency, but OSHA’s new program could now place home health agencies under the microscope, Tory Ian Summey, an associate at law firm Parker Poe, told Home Health Care News.

“You think about the folks that have been cited the most over the last year, and that includes … nursing homes and congregate living facilities,” Summey said. “This is anecdotal, but I haven’t seen a ton of home health companies being cited this year. Still, if you read through the bulletin [OSHA] published on Friday, home health care services is specifically identified as an industry of interest.”

When it comes to job safety, some studies have found that front-line health care workers are actually safer in the workplace than in their own homes. Individuals exposed to COVID-19 often come into contact with the virus through someone in their community, according to a recent study published in JAMA Network Open.

That suggests home-based care clinicians and caregivers are in a tricky situation, however, considering their workplace is the community at large.

On its end, the Washington, D.C.-based National Association for Home Care & Hospice (NAHC) welcomes OSHA oversight “as a means to guide continuous improvement measures taken by the home care community,” President William A. Dombi told HHCN.

Added guidance would likely prove helpful for many in-home care operators, too, considering many had to navigate the personal protective equipment (PPE) maze for the first time in 2020.

“Home care companies have long had a strong focus on infection control, and COVID-19 only served to strengthen them further in that respect,” Dombi said in an email. “PPE shortages continue to present a challenge, but providers place staff safety as one of the highest of priorities.”

A Visit from OSHA

OSHA’s national emphasis program also focuses on making sure that workers are protected from employer retaliation if they submit a complaint to the agency. In most cases, OSHA does not tell employers in advance that it is starting an investigation, typically arriving on-site without prior warning.

Broadly, OSHA inspections can include an on-site observational visit, plus interviews with management and non-management staff. After their visit, OSHA watchdogs also usually conduct a records review to better understand company practices and policies.

It’s not just Medicare-certified home health providers that need to look out for OSHA. Private-pay home care operators are likewise under the microscope.

“The home care industry faces an extra challenge under this OSHA initiative because our workplace is not a facility or a building, but rather the client’s home,” Jennifer Battista, senior director of membership and operations at the Home Care Association of America (HCAOA), told Home Health Care News in an email. “Home care agencies have always focused on the health and safety of both clients and caregivers, and this effort has only increased during the pandemic.”

HCAOA — also headquartered in D.C. — represents nearly 3,000 companies that employ more than 500,000 in-home caregivers.

OSHA’s new program will specifically zero-in on “companies that put the largest number of workers at serious risk of contracting the coronavirus.” Nearly all home health agencies have cared for COVID-19 patients since last spring, with some statistics suggesting that providers actually had more active cases than hospitals at one point.

Avoiding Penalties

Moving forward, providers should be aware of the potentially time-consuming and costly ramifications of OSHA inspections, Summey advised.

Those costs can come in the form of direct penalties, which can total several thousand dollars. But costs can also be indirect, related to time lost or unexpected legal fees.

“The time and energy the employer has to put into responding to an inspection request or a request for information means having to take time away from their business,” Summey said. “Most of the time, [the company] would best be served by having their counsel involved in those discussions, so you’re talking about a lot of expense, on top of the time that you’re devoted to it.”

While the amount of a monetary penalty depends on the severity of the case and the type of violation, it can eventually total “tens or hundreds of thousands of dollars,” according to Summey.

Aside from the increased oversight itself, employers need to fully comprehend just how sensitive OSHA can be to any claims of retaliation.

“The reason that statute exists is so everyone recognizes human nature — people tend to not like it when folks complain or raise concerns,” Summey said. “Humans kind of react adversely to things like that. The whole point … is to prevent that natural response and make clear that people should have an avenue to raise valid concerns in the workplace.”

In order to avoid issues, providers should have a robust non-discrimination and non-retaliation policy that makes it clear workers who raise safety concerns will not face blowback from the company. It’s likewise beneficial to have a history of COVID-19-related training for employees, or some sort of written record that highlights everything a company has done to protect workers during the pandemic.

It’s also important for providers to stay on top of CDC recommendations, according to Summey.

In the coming days, providers should keep an eye out for an emergency temporary standard from OSHA.

“It’s a comprehensive legally required standard that all employers have to implement when it comes to protecting the workplace against COVID-19,” Summey said. “Today, most of the public health guidance out there is voluntary — it doesn’t create a legal obligation. That could be changing over the coming days.”

At least 2,900 U.S. health care workers died in 2020 due to the COVID-19 pandemic, according to an analysis by Kaiser Health News and The Guardian. Fatalities from the coronavirus tended to skew younger, with the majority of victims under age 60.

Many of the deaths occurred in New York and New Jersey.

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