OSHA Provides Guidance for Healthcare Employers COVID-19 Inspections

The Occupational Safety and Health Administration’s (OSHA) recent Updated Interim Enforcement Response Plan for COVID-19 (Response Plan) was issued on the same day it announced its National Emphasis Program (NEP). Healthcare employers will continue to be a target of OSHA’s inspection efforts pursuant to the NEP. The Response Plan provides directions for OSHA compliance officers on how to conduct COVID-19 inspections.

The Response Plan details the categories of documents compliance officers should request. It also identifies specific standards that are most applicable to infectious diseases, which are:

  • Recording and Reporting Occupational Injuries and Illness;
  • Personal Protective Equipment;
  • Respiratory Protection;
  • Sanitation;
  • Accident Prevention Signs and Tags;
  • Access to Employee Exposure and Medical Records; and
  • The General Duty Clause of the Occupational Safety and Health Act.

The Response Plan also suggests OSHA will expect stricter compliance than it did during the early stages of the pandemic. For example, the Response Plan acknowledges OSHA has been exercising some enforcement discretion for the recording of COVID-19 cases, but notes that “employers should have an increased ability to determine whether an employee’s COVID-19 illness is likely work-related” in light of increased understanding of how the infection is transmitted and prevented.

Many healthcare providers have struggled with shortages of supplies and personal protective equipment, such as respirators. OSHA previously used enforcement discretion in addressing those situations. However, shortages are unlikely to serve as a compelling excuse for non-compliance. The Centers for Disease Control and Prevention (CDC) recently revised its guidance about sanitizing and reusing respirators due to an increase in supply. The Response Plan similarly states that shortages of health and safety equipment, such as N95 filtering facepiece respirators, are “becoming less of a barrier to compliance.” The Response Plan instructs compliance officers to evaluate the employer’s good faith efforts to comply with OSHA standards, including whether the employer “thoroughly explored alternative options to comply with the applicable standard(s),” like remote communications or training and efforts to obtain alterative respiratory protection devices. However, the Response Plan reiterates that enforcement discretion will not be exercised when respirators and other supplies and services are “readily available.”

A summary of the Response Plan can be found here.

The COVID-19 Strain on Health Care Remains, As Administrators Look to Long-Term Impacts

In March 2021, the Office of Inspector General (OIG) at the U.S. Department of Health and Human Services (HHS) released results from a national survey conducted between February 22-26, 2021 of front-line hospital administrators at 320 hospitals across 45 states, the District of Columbia, and Puerto Rico.  The purpose of the survey was to assess how responding to the ongoing COVID-19 pandemic has impacted hospital administrators’ capacity to care for patients, staff, and the communities they serve.

The survey focused primarily on (1) the most difficult challenges administrators face responding to the COVID-19 pandemic right now and the strategies used to address those challenges; (2) each organization’s greatest concerns for the future; and (3) how the government can best support hospitals.

Employee Well-Being

Administrators specifically reported the pandemic had resulted in increased hours and responsibilities for staff, including longer hours, extra shifts, reassignments to COVID-19 related duties and tasks, and mandatory overtime, leading to exhaustion and mental fatigue. Importantly, they also reported concerns about the trauma experienced by staff members and the grave realities of the pandemic weighing on their mental health, including mourning the loss of colleagues from COVID-19, being on the front lines caring for dying patients in their last moments without any patient family members present, and facing separation from their families for extended periods of time in an effort to keep their family members safe from potential exposure.

Turnover and Staffing Shortages

Administrators also reported that hospitals have experienced higher than normal turnover among medical staff causing staffing shortages, especially in positions such as respiratory therapists, certified nursing assistants, phlebotomists, laboratory technicians, and support staff critical to hospital operations.  Hospitals attributed much of this turnover to the fatigue from pandemic care, prompting staff members to retire early or even leave healthcare altogether.  With potentially fewer financial resources and a smaller labor pool, smaller and rural hospitals reported that these shortages especially impacted them.

To address staffing shortages hospitals have relied more extensively on traveling nurses and staffing agencies to fill essential roles, although patient care concerns have resulted because individuals filling these roles are less familiar with individual hospitals’ protocols.  Administrators are also concerned that the COVID-19 pandemic has deterred interest in the healthcare industry for students–a staffing impact that could remain for years to come.

Vaccines

As vaccines are distributed across the country, healthcare workers were some of the first to receive them.  However, administrators reported challenges responding to vaccine misinformation amongst staff and communities, as well as ensuring vaccine access for rural and low-income communities.  Administrators face difficulties convincing staff members of the importance and safety of the vaccine.

Overcoming these Challenges

To combat these challenges, administrators noted that they are establishing employee assistance and mental health and social support programs for staff.  They are also leveraging resources to reallocate staff from other departments and trying to retain and attract talent with higher pay, overtime incentives, bonuses, and other benefits where possible.  Further, they are launching vaccine education campaigns to educate employees and their communities from which they are seeing results.

Certainly, the survey underscores that the strains of the COVID-19 pandemic–both physical and emotional–are far-reaching.  Please reach out to your Jackson Lewis attorney who can provide additional best practices and resources as we navigate these challenges together.

Small NJ Medical Practice Becomes 18th Target of OCR’s HIPAA Right of Access Enforcement Initiative

The Office for Civil Rights (OCR) has taken enforcement action against a small New Jersey plastic surgery practice for its failure to timely respond to a patient’s records access request. Putting in place relatively simple policies, carefully developing template forms, assigning responsibility, training, and documenting responses can go a long way toward substantially minimizing the risk of an OCR enforcement action and its severity. Read more here.

Two New Connecticut Bills Aim to Prohibit Physician Non-Competition Agreements

There is wide variation from state to state on the enforceability of physician non-competition agreements. Connecticut lawmakers recently introduced two bills that seek to ban non-competition agreements for physicians. If implemented, this would be the second time in five years that Connecticut has legislated in the area of physician restrictive covenants. To learn more see this post in our Restrictive Covenant Report.

One Year Later: Five Post-COVID-19 Considerations For Healthcare Employers

Most healthcare employers have been dealing with COVID-19 for a year now. With vaccines widely available for this workforce, we offer five considerations for healthcare employers as they move toward a post-pandemic environment.

  1. Will COVID-19 vaccinations become an annual event?

For years many healthcare providers have required employees to get a flu shot. Are we heading that way with the COVID-19 vaccine? While many providers have encouraged but not required employees to get vaccinated, will that change as data comes in regarding vaccine efficacy and side effects? If so, employers should be ready with a robust communication plan as they roll out this requirement. Incentives for being vaccinated remain a hot topic while employers wait for definitive guidance from the Equal Employment Opportunity Commission regarding what types of incentives are lawful. If such guidance becomes available will we see widespread use of incentives in the future or will they be limited to this first round of vaccines? Employers also should be sure to incorporate lessons learned on dealing with potential vaccination-related absences. 

  1. Telehealth appears to be here to stay. What does that mean for your employees?

Telehealth has been well-received by patients and providers alike. It appears to be here to stay. We expect changes in telehealth credentialing at some point. Employers should watch for these developments and be prepared to assist in credentialing. Another area to watch is HIPAA compliance. Many providers moved quickly to telehealth. Now is the time to conduct a risk assessment and bolster privacy and security protections. Finally, employers need a plan for how to handle provider preference. Will there be a uniform approach to how much, if any, telehealth is offered by a department or practice? What, if any exceptions will be made for provider preference?

  1. Are there segments of your workforce you want to permanently WFH?

Some healthcare systems have reported strong remote work performance by some of their back-office functions. Does this suggest a benefit to permanent work from home arrangements in those departments and converting their current workspace for clinical use? If so, employers need to plan for possible turnover among those employees who would prefer to come to the work site on a regular basis. In addition, for healthcare employers who decide to hire remote workers in states other than those in which the employer operates, they must be sure to comply with employer registration requirements in those states.

  1. We anticipate increased union organizing activity. When is the right time to assess and address employee engagement and satisfaction?

Healthcare worker unions have been very active throughout the pandemic in advocating for thing such as better access to PPE and hazard pay. Some employees may feel their employer did not do enough for them during the pandemic or simply may be more open to listening to union promises of better working conditions. While now may not be the time to conduct employee satisfaction surveys, employers should be actively assessing employee engagement and satisfaction and working proactively to address any gaps.

  1. Will your organization incorporate nimble decision-making structures used during the pandemic?

Many organizations formed COVID-19 Task Forces that changed the pace and process for making organizational decisions. Employers should assess whether they would benefit from moving permanently to some of these processes. This presents an excellent opportunity for greater collaboration between hospital administrators and medical staff leaders and generally across disciplines.

Reach out to your Jackson Lewis attorney who can provide additional best practices and resources as the healthcare industry navigates these developments together.

FDA Names First Acting Director of Medical Device Cybersecurity

The U.S. Food and Drug Administration (FDA) named University of Michigan Associate Professor Kevin Fu Acting Director of Medical Device Security in its Center for Devices and Radiological Health. This is a newly created 12-month post in which Fu will “work to bridge the gap between medicine and computer science and help manufacturers protect medical devices from digital security threats.” You can learn more here.

Updated Guidance for Healthcare Personnel Returning To Work Post-Vaccination

As more healthcare employees receive their COVID-19 vaccinations, questions about when vaccinated healthcare employees can return to work if experiencing COVID-19 symptoms continue to arise.  Coupled with ongoing staffing shortages in the industry, the need for employees to return to work when safe to do so is a pressing concern for many healthcare employers.

To help, the U.S. Centers for Disease Control and Prevention (CDC) issued updated guidance on strategies for evaluating and managing post-vaccination signs and symptoms, which may be challenging to distinguish from the signs and symptoms of COVID-19 or other infectious diseases.  Vaccinated or not, healthcare employees must continue to abide by current infection control measures, but this updated guidance provides clarity on returning vaccinated employees to work even when they may be experiencing both COVID-19 vaccination-related and COVID-19 symptoms.

The CDC’s updated guidance recommends the following return to work strategies for healthcare personnel who experience post-vaccination systemic signs and symptoms:

  • If vaccinated within the last three days, a vaccinated employee experiencing symptoms following the vaccination common to the vaccination and COVID-19 (g., fever, fatigue, headache, chills, muscle and joint pain) who are not known to have unprotected exposure in the previous 14 days, may return to work without testing if they feel well enough to do so. More on fevers below.  If symptoms are not improving or persist for more than two days, the vaccinated employee should be excluded from the workplace and viral testing for COVID-19 should be considered.
  • If the vaccinated employee develops symptoms only related to COVID-19 and not vaccination (g., cough, shortness of breath, rhinorrhea, sore throat and loss of taste or smell), the employee should be excluded from the workplace and the CDC’s general criteria on returning to work for healthcare personnel should be followed.
  • Vaccinated employees with fevers should ideally be excluded from the workplace pending further evaluation. In the case of current or anticipated critical staffing shortages, vaccinated employees with fever and systemic signs and symptoms limited only to those observed following vaccination could be considered for work if they feel well enough and are willing.  In such case, the vaccinated employees should be re-evaluated, and viral testing for COVID-19 should be considered, if the fever does not resolve within two days.
  • If a vaccinated healthcare personnel is symptomatic and had unprotected exposure to COVID-19 in the past 14 days, they should be excluded from the workplace, evaluated for COVID-19 and CDC guidance should be followed.

Under recent CDC guidance, vaccinated healthcare personnel with an exposure to someone with suspected or confirmed COVID-19 may return to work if they meet all of the following criteria:

  • Are fully vaccinated (i.e., more than two weeks following receipt of the second dose in a 2-dose series, or more than two weeks following receipt of one dose of a single-dose vaccine).
  • Are within 3 months following receipt of the last dose in the series.
  • Have remained asymptomatic since the current COVID-19 exposure.

The CDC reminds healthcare employers to:

  • Educate employees about the potential for short-term systemic signs and symptoms post-vaccination to assist in identifying symptoms that may be vaccination related versus those that are not.
  • Create mechanisms for timely assessments of vaccinated employees to distinguish between circumstances warranting exclusion from work from situations where providers can safely return.
  • Consider nonpunitive sick leave options to encourage reporting of symptoms.

This guidance may evolve as we continue to learn more about the effects of vaccination, but is a helpful tool for healthcare employers looking to ensure adequate staffing coverage while confirming an employee’s return to work is done in a safe manner.  Jackson Lewis continues to monitor the unique issues affecting healthcare employers in a post-vaccinated world.  Please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our COVID-19 team to learn more.

*This post was updated 2/12/2021 to include CDC guidance issued 2/10/2021, after the initial post publication.

CDC Issues Post Vaccine-Considerations for Healthcare Personnel

As employers in healthcare settings prepare to administer the vaccine to healthcare personnel, they are likely grappling with new practical considerations.  Undoubtedly, one of the most widespread challenges is how to manage employees with potential post-vaccination systemic signs and symptoms (“signs and symptoms”), without unnecessarily imposing work restrictions to the detriment of patient care demands.  Towards these ends, the CDC has issued a series of considerations healthcare employers should review as they develop policies to balance these competing concerns.  Below is an overview:

  1. Vaccinate HCP preceding 1-2 days off from work.
  2. Stagger both doses of the vaccine. Don’t vaccinate an entire department or unit at the same time.
  3. Educate HCP about potential signs and symptoms and options to mitigate them.
  4. Assess HCP exhibiting signs and symptoms consistent with the CDC’s recommended approaches.
  5. Encourage HCP to report signs and symptoms by offering non-punitive paid leave.

For assistance drafting your institution’s COVID-19 vaccination policy generally, or specifically addressing HCP with signs and symptoms, please contact Sarah Skubas, Mary McCudden, or the Jackson Lewis attorney with whom you usually work.

Year-End Considerations and Resources For Healthcare Employers

Surging COVID-19 cases, COVID-19 vaccination considerations and post-election impacts are just a few of the many evolving issues facing healthcare employers as we head into the end of 2020. If you missed our recent Healthcare Industry Key Trends webinar, please consider watching as our Jackson Lewis colleagues touch on many of these issues and more. Also, our colleague’s recent post on COVID-19 vaccination considerations is a helpful tool as healthcare employers will likely be the first to navigate employee COVID-19 vaccinations as we near the end of 2020.

Additionally, COVID-19 fatigue is a real concern facing many healthcare employers. More than ever, employees are balancing work and personal demands with limited time and increased stress. Merely providing an Employee Assistance Program (EAP) referral is not enough. There are several resources for healthcare employers to consider as they navigate employee fatigue, including:

As we head into the end of 2020, now is a good time for healthcare employers to review these top issues facing the industry, including COVID-19 fatigue and vaccination considerations. Reach out to your Jackson Lewis attorney, who can provide additional best practices and resources as the healthcare industry navigates these developments together.

Families First Coronavirus Response Act’s 80 Hours of Emergency Paid Sick Leave is ‘One Time Use’

As the COVID-19 pandemic continues, employees who took leave earlier in the year may be requesting additional COVID-19-related leave. Employers covered by the Families First Coronavirus Response Act (FFCRA) are again seeking guidance in determining which employees qualify for the emergency sick leave and family leave portions of the FFCRA. In September 2020, the federal Department of Labor (DOL) issued revised regulations that limited the scope of the “health care provider” exemption of the FFCRA, so many healthcare employers must revisit their position on employee eligibility for FFCRA leave.

In particular, employers being asked to provide Paid Sick Leave (PSL) under the FFCRA should determine whether the employee in question has already taken their 80 hours of PSL – whether working for the employer OR whether the employee in question was working for another entity at the time of that paid leave. Most employers realize that employees to whom they granted 80 hours of PSL last spring or during the summer of 2020 are not entitled to a second allowance of PSL now. However, many do not realize that employees who took 80 hours of PSL while working for a previous employer have exhausted their PSL entitlement as well.

The DOL’s regulations provide under 29 C.F.R. Sec. 826.160(f) – titled “One time use” – that “Any person is limited to a total of 80 hours of Paid Sick Leave. An Employee who has taken all such leave and then changes Employers is not entitled to additional Paid Sick Leave from his or her new Employer.” Employers can and should ask employees hired over the past several months whether they have already taken their PSL with a previous employer, before granting PSL.

Of course, providing unnecessary PSL to an employee beyond their maximum entitlement under the FFCRA also will have tax credit implications.

Please contact a Jackson Lewis attorney with any questions.

 

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