OSHA is pursuing a new avenue to identify potential employer violations related to COVID-19 employee deaths at long-term care facilities: employers' CMS data.
In May 2020, the Centers for Medicare & Medicaid Services ("CMS")1 issued an Interim Rule,2 which became final in September, requiring Facilities to report various COVID-19 related data to CMS.3 Data must be reported at least weekly and, relevant here, includes suspected and confirmed COVID-19 cases and deaths among Facilities' staff attributable to COVID-19.
To ensure this data is timely reported, CMS may impose civil penalties for non-compliance, with a minimum of $1,000 for a first occurrence and a $500 per occurrence increase thereafter.4
OSHA has begun cross-referencing Facilities' reports to CMS to identify whether the deaths reported to CMS have also been reported to OSHA. If a fatality is reported to CMS but not to OSHA, the discrepancy could prompt OSHA to investigate whether the Facility has committed a reporting violation.
Importantly, CMS requires Facilities to report all COVID-19 employee deaths, whether work-related or not, while OSHA requires Facilities to report only those COVID-19 employee deaths that are "work-related."5 Thus, Facilities' CMS reports likely will not match reports to OSHA, even if Facilities have correctly reported to both agencies. Nonetheless, employers should be prepared for the possibility that these reporting "discrepancies" could prompt OSHA to investigate.
What Employers Can Expect
Typically, OSHA initiates this type of investigation by issuing a written inquiry to the Facility, and the Facility must respond in ten days. OSHA's written inquiry usually seeks basic information concerning the subject fatality but also focuses on the Facility's efforts to determine whether the employee death was "work related." This "work relatedness" determination triggers the employer's reporting and recording duties under OSHA regs. In OSHA inquiries we have seen, employers are required to establish how they reached the "work relatedness" determination by providing a "brief description of the nature of each employee fatality" and "a statement on whether the fatality was work-related with supporting explanation."
Failure to comply with OSHA's inquiry deadlines, or failure to provide satisfactory information in response to the inquiry, may result in an OSHA on-site inspection. Inspections of this nature can involve a review of Facility OSHA logs and compliance with OSHA regulations that protect workers from exposure to COVID-19, such as Respiratory Protection and other PPE standards. If an inspection occurs, OSHA may issue citations for alleged violations observed "in plain view" of the area of the Facility to which OSHA has access, even if they are unrelated to the original stated purpose of the inspection.
With all this in mind, employers must take appropriate measures to be sure that reporting to CMS and OSHA is accurate and well-documented. Facilities should analyze and process weekly data submissions to CMS with an eye toward OSHA compliance as well.
- Some tips:6
- Carefully evaluate all COVID-19 employee cases to determine whether they are "work-related," as this triggers your OSHA recording and reporting duties.
- OSHA's most recent guidance on
COVID-19 reporting and recording duties was issued in May 2020. We helped interpret it for you in this article. For quick reference:
- Employers must
report all "work-related COVID-19 illnesses
that result in a fatality or an employee's in-patient
hospitalization, amputation, or loss of an eye." Once an
employer determines that an employee fatality is
"work-related" due to COVID-19 or otherwise, if death
occurs within thirty (30) days of the work-related exposure, the
employer has eight (8) hours to report the death to OSHA.7
- Also note, OSHA regulations provide for a continuing duty to later report if additional information changes the employer's initial conclusion as to whether a COVID-19 case was "work-related."
- Employers must record all confirmed COVID-19 employee cases that are "work-related" and result in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or a significant injury or illness diagnosed by a health care professional.
- Employers must
report all "work-related COVID-19 illnesses
that result in a fatality or an employee's in-patient
hospitalization, amputation, or loss of an eye." Once an
employer determines that an employee fatality is
"work-related" due to COVID-19 or otherwise, if death
occurs within thirty (30) days of the work-related exposure, the
employer has eight (8) hours to report the death to OSHA.7
- In sum, recording and reporting duties to OSHA are not the same! An employer might not have to report an employee illness due to COVID-19 but still might have to record it. Analyze each incident with care in order to determine your duties.
Footnotes
1. CMS is a part of the U.S. Department of Health and Human Services.
2. See 42 C.F.R. § 483.80(g).
3. The regulations apply to "facilities," which are described as "skilled nursing facilities" and "nursing facilities" that meet the requirements of the Social Security Act and participate in the Medicare or Medicaid program. See 42 C.F.R. § 483.5; see also 42 U.S.C. §§ 1395i-3, 1396r. Facilities report this data to the CDC's National Healthcare Safety Network Long-Term Care Facility Module, which is the nation's most widely used healthcare-associated infection tracking system, providing facilities, states, regions, and the nation with important information used for infection prevention and elimination. See https://www.cdc.gov/nhsn/ltc/covid19/index.html.
4. See 42 C.F.R. § 488.447.
5. OSHA's standard regulations on the determination of work-relatedness state: "You must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception applies as listed in 1904.5(b)(2)." For more guidance on making the "work relatedness" determination, see our previous articles here, here, and here.
6. These points are by no means exhaustive. Thorough and frequent review of OSHA regulations and guidance is advised.
7. See 29 C.F.R. 1904.39(a)(1).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
