What Home-Based Care Agencies Need to Know About OSHA’s New Guidelines

In an effort to ease some of the COVID-19 burden, federal regulators have relaxed certain restrictions on home-based care providers since the Trump administration declared a public health emergency on March 13.

But while the Centers for Medicare & Medicaid Services (CMS) and other agencies loosen their grip, the Occupational Safety and Health Administration (OSHA) is tightening theirs. OSHA — part of the U.S. Department of Labor (DOL) — is tasked with assuring “safe and healthy working conditions” for most workers in the U.S. 

“OSHA is now ramping up its enforcement relating to COVID-19. It was kind of standing down for a few weeks, [but] now we’re seeing some changes in that,” Bradford Hammock, a shareholder at law firm Littler Mendelson, said on a recent webinar. “When thinking about the range of issues you have to deal with, you certainly have to start thinking about OSHA as well.”

For home health providers, the COVID-19 virus has made compliance harder for obvious reasons. Now, home-based care companies have been labeled as “high” or “very-high” risk environments for workers by OSHA.

Workplace safety standards, in turn, are now much higher in the in-home care arena than they are elsewhere. That means if an in-home care worker were to file a complaint, OSHA would now be much more likely to look into that provider’s practices, comparatively speaking.

The agency recently released new guidance specifically relating to the COVID-19 crisis that reflects what it expects out of employers — and what compliance officers should look for in an inspection.

The first thing that agencies should do to comply with OSHA’s guidelines is have a written COVID-19 plan.

“Some sort of written approach that deals with how you are going to be dealing with COVID-19 for your employees — that’s first and foremost,” Hammock said. “If you don’t have that now, that’s something you have to do.”

The next thing to do is conduct a hazard assessment and develop protocols for personal protective equipment (PPE) as well as suspected COVID-19 cases.

“OSHA wants [agencies] to be thoughtful about that,” Hammock said. “Have a written plan, and put the conducted hazard assessment in writing as well — and be able to explain that to a complaint inspector.”

Evaluating the workplace is harder for home-based care agencies because business is often conducted in lots of places, but a thoughtful assessment is still required.

“They’re particularly looking to see to what extent your job activities involve close contact to people that may be COVID-19-postive and handling specimens,” Hammock said. “Those are the sort of things they want you to look at and have evaluated as part of your efforts.”

It’s similarly critical that employees have been schooled on exactly what their employer’s plan is during COVID-19. Additionally, employees should be able to demonstrate that they have been trained properly to follow that plan.

In the case of an inspection, OSHA is also going to look at any type of medical records or exposure records that a company has related to its own employees and the patients that they have been caring for, according to Hammock. A compliant officer will likely inquire about those records if an inspection takes place.

Furthermore, Hammock said, it’s important that agencies have reviewed the respiratory protection program and put in substantial effort to make sure employees are as protected from infection while working as possible.

“OSHA wants [providers] to be aggressively going after PPE,” Hammock said. “If you are exhibiting good faith in trying to get that equipment and for some reason there is a shortage or you can’t get it, then OSHA may give you an enforcement break.”

OSHA wants providers to have considered the hierarchy of controls in terms of how they are protecting their workers, Hammock added. For home care providers, that’s a harder task because their workplace is less in their hands.

The bottom line: Providers should be able to prove that they’ve had a plan, that they’ve expressed this plan to workers and that they are aggressively trying to acquire the resources to make the work environment as safe as possible.