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Continued Uptick in OSHA Requests for Information to Nursing Homes

By Catherine A. Cano on March 1, 2021
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Long-term care facilities have been hit hard by COVID-19. As we approach the one-year anniversary of this national emergency, many facilities have grown accustomed to the additional reporting and scrutiny. However, this climate has also made it easier for OSHA to target long-term care facilities. One of OSHA’s common tactics is using public records (e.g., newspapers and other media) as well as facility reports to the National Healthcare Safety Network (NHSN) to support requests for information about employee deaths (often without opening an inspection). These inquiries come in a variety of forms, from written requests to cold calls. The knee jerk reaction to respond in full is not always the only option, and it can open up the facility to an unnecessary inspection. Most facilities simply do not need that type of disruption or distraction during these trying times.

Unlike the reports to NHSN, which requires nursing homes to report all staff deaths, employers are only required to report work-related deaths to OSHA. This can be a difficult determination with COVID-19 infections. In the spring of 2020, OSHA issued guidance that provided some insight into making such determinations, which we blogged about here.

It is important to remember that OSHA’s right to conduct an inspection is not absolute. OSHA must have specific evidence of an existing violation or show of administrative reasonableness. The fact of a COVID-related employee death does not necessarily meet these standards, particularly given the prevalence of community spread in many areas of the country. The lawfulness of an OSHA request for information or inspection must be determined on a case-by-case basis, and facilities should consult with counsel before refusing to provide information to OSHA.

OSHA’s efforts also underscore the importance of evaluating COVID-related employee deaths and hospitalizations to ensure compliance with OSHA’s reporting requirements.

Photo of Catherine A. Cano Catherine A. Cano

Catherine A. Cano is a principal in the Omaha, Nebraska, office of Jackson Lewis P.C. Catherine represents management in all areas of labor and employment law.

Catherine helps clients navigate obligations under the Americans with Disabilities Act, Family and Medical Leave Act, and…

Catherine A. Cano is a principal in the Omaha, Nebraska, office of Jackson Lewis P.C. Catherine represents management in all areas of labor and employment law.

Catherine helps clients navigate obligations under the Americans with Disabilities Act, Family and Medical Leave Act, and state disability and leave laws. She also counsels clients on workplace drug and alcohol issues, including developing substance abuse policies. Catherine has defended more than 100 charges of discrimination filed with federal, state and local administrative agencies, and regularly appears before the U.S. Equal Employment Opportunity Commission, Iowa Civil Rights Commission and Nebraska Equal Opportunity Commission. Catherine represents in employers in federal and state court proceedings and has successfully defended multiple employment arbitrations.

Catherine’s practice also includes assisting clients with union organization campaigns, collective bargaining, grievance arbitrations, and unfair labor practice charges. Catherine also has experience defending employers against whistleblower claims filed with the Occupational Health and Safety Administration.

Read more about Catherine A. CanoEmail
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  • Posted in:
    Health Care and Life Sciences
  • Blog:
    COVID-19 Workplace Law Advisor
  • Organization:
    Jackson Lewis P.C.
  • Article: View Original Source

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