One of the first actions taken by the Biden Administration the day after the Inauguration was to issue an Executive Order directing OSHA to focus their efforts on protecting the American workforce. Following that Executive Order, OSHA has implemented a National Emphasis Program (NEP) to ensure that employees in high-hazard industries, including EMS providers, are protected from contracting COVID-19. The NEP is intended to augment OSHA’s educational and enforcement efforts with unprogrammed, COVID-19 related activities, including complaints, referrals, and severe incident reports. The March 12, 2021 announcement also states that it is updating the Interim Enforcement Response Plan to prioritize on-site workplace inspections. The NEP also includes plans to ensure that workers are protected from retaliation. Lastly, states that have an OSHA-approved state-level plan, have 60 days to notify OSHA if they already have the equivalent to an NEP plan or will adopt the federal plan.
What does this mean for EMS providers?
This should serve as an alert to EMS agencies that they should revisit their safety and risk programs, including their Respiratory Protection Programs, to ensure that they are prepared for a visit from OSHA.
Respiratory Protection Programs
At many EMS agencies, this is part of the bloodborne and airborne protection policies that have been in place for decades. I caution agencies to review their existing plan against OSHA’s Respiratory Protection Regulations. Under the regulations, all individuals who are mandated to wear an N95 or other respirator must complete a medical questionnaire that is reviewed by a physician or other healthcare provider prior to the employee having to donning the mask while working.
The regulation provides elements of a Respiratory Protection Program that includes identifying a Respiratory Program Administrator (RPA) that is designated by a Medical Director who will be responsible for developing, maintaining, and ensuring compliance with policies, procedures, and practices relative to the selection, storage, use, and maintenance of respirators. Additionally, the RPA is responsible for conducting or coordinating all training, fit testing, and recordkeeping required by the regulations.
OSHA has published a Small Entity Compliance Guide for the Respiratory Protection Standard. This is a 124-page document that outlines the Respiratory Protection Standards and provides sample templates and checklists that can be utilized by employers to assist with compliance. Like with patient care documentation, be sure that your Respiratory Protection Program documentation is sufficiently detailed and includes:
- A written copy of all current, and past Respiratory Protection Program documentation (P&Ps, etc.)
- The name of all current and past RPAs
- All medical determinations (Fit Testing Medical Questionnaire reviewed by MD)
- All Fit Testing records
- All Respiratory Protection Program training records
- Personal Protection Equipment Hazard Assessments
- All Risk Assessments post employee exposure (Unprotected Exposure Investigation Forms)
- All exposure control records
- Documentation demonstrating the method utilized to communicate safety related information to employees.
What do I do if I receive a call from OSHA?
It is unnerving to receive a phone call from a local, state, or federal oversight agency. However, contact from an oversight agency does not always mean that they have received a complaint. All U.S. Department of Labor agencies perform outreach in the various regions to educate and engage employers and different industry groups.
That being said, the U.S. DOL is a busy agency, especially during the pandemic. Most likely, if your organization is being contacted by OSHA, it is due to a complaint, referral, or data targeting run. The first two are self-explanatory. A data targeting run is the identification of a specific employer through analysis of data submitted to the agency. This is typically information such as electronically submitted workplace injury and illness data.
If you receive a call from OSHA, my recommendation is to listen more than you speak. Take copious notes and document the conversation immediately following the call. The OSHA representative will tell you why they are calling and will likely request various documents or other evidence be sent to their office. Do not expect that they will tell you who complained, and I would not ask. My suggestion, request that the representative email or fax over a letter identifying the representative, the documents or other information they are seeking, the date that you must furnish the information, and the method upon which they want the information sent.
You may not have firsthand knowledge of the issue or incident that led to the complaint to OSHA. That is okay. You can tell the representative that you and your team will investigate and/or compile the requested information following the call and respond. The investigator does not expect that you will necessarily have all the answers at the time of the call. You should be courteous and responsive but remember that a response that is carefully considered and crafted is likely to lead to the best result. Do not wing it! Lastly, no matter whether you know who complained or not, do not take any action that can be viewed as retaliatory against employees.
What do I do if an OSHA Investigator appears at my workplace?
Generally speaking, an OSHA Investigator will not just appear in your workplace. Not to say that they cannot. They certainly can. If an OSHA Investigator comes to your workplace you do have certain rights, but so does OSHA. OSHA has the right to arrive unannounced, gain access to the workplace without significant delay, and question employees privately. They will show you their OSHA credentials and you should ask for a business card.
An employer has the right to demand to see an inspection warrant. This is the document that is the basis for OSHA’s probable cause for the inspection. However, I do not recommend demanding the inspection warrant. This will most certainly put you and the OSHA investigator in an adversarial position. As they say, this can go one of two ways, hard or less hard.
An employer has the right to an opening conference. Many important things can happen during the opening conference. First, you can learn the nature of the complaint and related investigation and attempt keep the scope of the investigation as narrow as possible. Next, you can establish the probable cause for the visit and learn their plans for the investigation. This will likely include a worksite “walking around” inspection, interviews, document review, etc. You can better prepare once you know what to expect.
An employer has the right to accompany the OSHA Investigator during their site inspection. I recommend taking photos of anything that the investigator documents or inspects and documenting physical evidence or documents that they take during the inspection. You may also ask the investigator for a log of any evidence taken. Lastly, you should know that the investigator has the right to interview your employees privately. However, you have the right to be present during any management interview.
Bottom line, you should cooperate with the investigator. They are people too and generally want to help employers be complaint with the law. They are not looking to find violations. They are looking to ensure compliance and protect workers. From my time working at the U.S. DOL, I can attest that we appreciated cooperative and friendly employers who know the law and can quickly provide the information or documents we are seeking. The quicker and more responsive I found an employer to be, the greater likelihood my index of suspicion reduced, and that the employer was following the law.
OHSA has identified that the NEP will be in place for the next twelve (12) months. NEP plans are intended to be temporary but can be extended if the pandemic continues past the anniversary of the plan. While there were numerous industries listed in the OSHA notice, ambulance service providers were specifically identified as one of the high-risk industries that would be the focus of this new program.
If your service has questions or needs assistance with ensuring that your organization is compliant, be sure to contact firstname.lastname@example.org for assistance.