OSHA Puts Healthcare Employers on Alert After Issuing Penalties for Willful Citations

By: William D. Wilmoth, Nelva J. Smith

Published: August 9, 2021

An alarm bell has sounded for healthcare facilities as the Occupational Safety and Health Administration (OSHA) issues two Willful COVID-19 Citations with nearly $300,000 in proposed penalties.

On August 4th, OSHA announced the issuance of two Citations classified as Willful with total proposed penalties of $273,064, under the OSHA Respiratory Protection Standard, 29 C.F.R. Section 1910.134, and not under the new Healthcare Emergency Temporary Standard (ETS). The citations were for failure to require medical questionnaires and failure to provide fit testing for temporary employees required to wear N95 respirators. In the past, such citations were often issued as Serious in classification with one-tenth the proposed penalties in this case.

CHEMED is a comprehensive medical treatment center, which includes internal medicine, pediatrics, dentistry, and other disciplines. It was cited by OSHA after hiring a temporary agency to come in and conduct COVID-19 testing on those patients suspected of COVID-19 disease.

CHEMED was cited under a Willful classification for requiring the temporary workers, employed by a temporary agency, to wear respirators, N95s, without conducting the medical evaluations and fit testing required by the Respiratory Protection Standard, while conducting COVID-19 tests.

Healthcare entities who have temporary workers that are required to wear respirators may be cited as Willful in addition to the temporary agency that employs the workers, according to these citations.

The CHEMED citations illustrate that healthcare entities whose own employees might conduct such tests or be exposed to potentially COVID-19 diseased workers or patients, and who are required to wear respirators, may be cited under a Willful or Repeat classification, in either event with proposed penalties of up to $136,532 per violation. The same could occur for temporary agency workers, contractors, and other providers who are required to wear respirators while in the facility, if the host facility does not ensure they have been medically evaluated, fit tested, and trained under the Respiratory Protection Standard, and they are knowingly exposed to potentially infected patients or other workers. While a Willful Citation requires a reckless indifference to safety or similar knowledge, a Repeat Citation does not require any particular level of knowledge, other than “should have known.” So if a facility was cited during the COVID-19 pandemic, and those citations have become final either after an informal settlement or a contest procedure, the employer can be cited with a penalty of up to $136,532 for each violation. Any employer at a facility who may be a creating, controlling, exposing, or correcting employer can be cited, so multiple employers can be cited for the same violations.

This is an alarm bell for long-term care, hospital facilities, and even those facilities not technically covered by the COVID-19 Healthcare Emergency Temporary Standard (ETS).

Please contact the authors below or any member of Steptoe & Johnson’s OSHA/Workplace Safety Group for questions or further information regarding this alert.

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