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.