CDC and OSHA Issue COVID-19 Guidance for the Nursing Home Industry

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Seyfarth Synopsis: OSHA issues specific guidance related to COVID-19 policies, administrative controls, engineering controls, personal protective equipment, and face masks.   

During the COVID-19 pandemic, nursing homes and care facilities have instituted significant precautions and protocols to address employee and resident safety.  The Centers for Disease Control and Prevention (CDC) and federal Occupational Safety and Health Administration (OSHA) have both recently published guidance documents to assist guide nursing home employers in their response. The CDC has issued Considerations for the Public Health Response to COVID-19 in Nursing Homes, (April 29, 2020). This guidance is intended to assist nursing homes and public health authorities with response in nursing homes. This guidance supplements but does not replace recommendations included in the CDC’s earlier Interim Additional Guidance for Infection Prevention and Control for Patients with Suspected or Confirmed COVID-19 in Nursing Homes. OSHA just issued a COVID-19 Guidance for Nursing Home and Long Term Care Facility Workers, (May 14, 2020), which employers can follow to help protect nursing home workers and long term care facility workers from exposure to the coronavirus. 

The CDC advises that nursing homes should:

• Act now to implement all COVID-19 preparedness recommendations, even before cases are identified in their community
• Address asymptomatic and pre-symptomatic transmission, implement source control for everyone entering a healthcare facility (e.g., healthcare personnel, patients, visitors), regardless of symptoms.
  • Cloth face coverings are not considered personal protective equipment (PPE) because their capability to protect healthcare personnel (HCP) is unknown. Facemasks, if available, should be reserved for HCP.
  • For visitors and residents, a cloth face covering may be appropriate. If a visitor or resident arrives to the facility without a cloth face covering, a facemask may be used for source control if supplies are available.
• Dedicate an area of the facility to care for residents with suspected or confirmed COVID-19; consider creating a staffing plan for that specific location.

In its nursing home and long-term care facility workers news release and alert, OSHA suggests the following measures that can help protect employees working in nursing homes and long term care facilities, including:

• Require workers to stay home if they are sick;
• Screen workers and residents regularly for signs and symptoms consistent with the coronavirus. Send sick workers home or to seek medical care;
• Closely monitor and take additional precautions regarding employees and residents who may have been exposed to an individual with the coronavirus;
• Follow CDC guidance on updating existing resident visitation policies;
• Ask visitors to inform the facility if they develop a fever or symptoms consistent with the coronavirus within 14 days of their visit;
• Maintain at least 6 feet between workers, residents, and visitors to the extent possible, including while workers perform their duties and during breaks;
• Stagger break periods to avoid crowding in breakrooms;
• Consider alternatives to in-person large group gatherings (e.g., staff meetings, resident activities);
• Always follow good infection prevention and control practices. Consult OSHA’s COVID-19 guidance for healthcare workers and employers.
• Provide handwashing facilities and alcohol-based hand sanitizer with at least 60 percent alcohol throughout facilities;
• Regularly clean and disinfect shared equipment and frequently touched surfaces in resident rooms, staff work stations, and common areas;
• Use hospital-grade cleaning chemicals approved by the Environmental Protection Agency (EPA) from List N or EPA-approved, hospital grade cleaning chemicals that have label claims against the coronavirus;
• Ensure workers have and use any personal protective equipment (PPE) they need to perform their jobs safely;
• Continually monitor personal protective equipment (PPE) stocks, burn rate, and supply chains. Develop a process to decontaminate and reuse PPE, such as face shields and goggles, as appropriate. Follow CDC recommendations for optimization of PPE supplies;
• Train workers about how to protect themselves and residents during the pandemic; and
• Encourage workers to report any safety and health concerns.

These recommendations are consistent with OSHA’s general guidance for employers and likely also apply to private duty aides employed by residents’ families.  By following this guidance, where feasible, employers can demonstrate compliance with OSHA’s General Duty Clause to maintain a workplace free from any recognized hazard.  Compliance will also demonstrate the employer’s adoption of the standards of care to reduce liability for state tort claims.

In addition, the Governors of New York and Texas have recently directed that nursing home workers be tested for COVID-19. While in Texas such testing is to be carried out by State agencies, in New York, preliminary indications are that the facilities will be responsible.

Implementing these guidances and directives raises a myriad of additional legal considerations.  In developing a COVID-19 workplace safety and testing program, facilities should not overlook both general and COVID-specific issues such as immunity from liability, informed consent, employee accommodations, resident rights and information privacy.

For more information on this or any related topic, please contact the authors or any member of the Workplace Safety and Health (OSHA/MSHA) Team.