DOL Says Ohio Facilities Dropped Ball On COVID Protection

By Danielle Nichole Smith
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Law360 (July 21, 2020, 8:23 PM EDT) -- The U.S. Department of Labor announced Tuesday that three nursing facilities in Ohio were cited for violating respiratory protection standards after the agency conducted inspections following seven coronavirus-related worker hospitalizations reported by the company. 

According to the press release, the agency inspected the three OHNH EMP skilled nursing facilities — Pebble Creek Healthcare Center, Salem West Healthcare Center and Salem North Healthcare Center — and found that they fell short of two respiratory inspection standards.

OSHA Cleveland Area Office Director Howard Eberts noted that OSHA "relied on one of its preexisting standards that protect workers from the coronavirus" in issuing the citation to OHNH EMP.

"OSHA's investigation found that, although the company was making efforts to protect its employees from the coronavirus, it had not fully implemented an appropriate respiratory protection program," Eberts said in the statement. "Employers are and will continue to be responsible for providing a workplace free of serious recognized hazards."

The facilities didn't develop a comprehensive written respiratory protection program or give medical evaluations to determine whether workers were able to use respirators in the workplace, according to the release.

And a hazard alert letter was also issued over the company's policy of letting N95 respirators be used for up to seven days and not conducting initial fit tests, the release said. The agency said that it has proposed $40,482 in penalties. 

Frederick W. Stratmann — the general counsel, and chief compliance and privacy officer of CommuniCare Health Services — said that they "have received notice of the citations from OSHA and believe the decision was made in a vacuum." OHNH EMP is a part of the CommuniCare Family of Companies, according to Stratmann.

"Our centers were not required to have a respiratory protection program in place or conduct medical examinations until they started using N95 masks. This happened in the midst of a pandemic emergency," Stratmann said. "We made reasonable efforts to comply, but were unable to procure fit tests until very recently and we were dedicating all of our efforts to fight the onset of COVID-19 in our nursing homes." 

Stratmann added that the "issues have all been abated" and said that they have requested an informal conference with OSHA to resolve the matter.

--Editing by Steven Edelstone.

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