Long-Term Care Facilities and COVID-19

COVID-19 has been devastating to long-term care facilities (LTCF). As of June 1, 2021, they represented 4% of all cases and 31% of all U.S. deaths. This is because COVID is particularly lethal to adults over 60, especially those with underlying health conditions who live in congregate facilities.  

Although many LTCF residents and staff have received the COVID-19 vaccine, these facilities must remain vigilant and continue to comply with federal and state safety guidelines. If you work at an LTCF, you may be concerned about your employer providing you with a safe work environment and following best practices. McOmber McOmber & Luber, P.C. is tracking the latest developments regarding COVID-19. Here are the highlights.  

What Safety Measures Should Long-Term Care Facilities Be Taking Right Now?  

If you work at a LTCF (including nursing homes, assisted living, skilled nursing facilities, inpatient hospice, convalescent homes, and group homes with nursing care), you are at a greater risk of contracting COVID-19. This is not a surprise since LTCF’s contain mostly older adults with underlying chronic medical conditions who are more likely to contract the virus.

Recognizing this increased risk, the New Jersey Department of Health released specific guidance requiring employers to follow certain safety measures including:  

1. Aggressive screening and enforcing sick leave policies of sick employees.   
2. Advising persons who enter the facility to monitor for fever and other COVID-19 symptoms for at least 14 days after leaving the facility. 
3. Communicating to staff and families regarding a COVID-19 outbreak or investigation. 
4. Instructing visitors on proper hand hygiene and mask use. 
5. Separating residents and staff returning to the facility after having COVID-19. 

What Protective Gear Should My Employer Provide Me?  

The Occupational Safety and Health Administration (OSHA) requires employers to provide their employees a workplace free from hazards likely to cause death or serious physical harm. In the age of COVID-19, this means providing appropriate facemasks and other protective equipment.  

If you are in close contact with a resident or patient with suspected or confirmed COVID-19, your employer must provide you with a NIOSH-approved N95 mask or equivalent or higher-level respirator. 29 C.F.R. 1910.134. Similarly, N95 masks are required when exposure to splashes and sprays of infectious material is present. Since N95 masks provide the highest level of protection, your employer must make sure the mask has a proper seal and performs a fit test.  

If you work in an area with moderate to substantial community transmission, the DOH recommends you also wear universal eye protection or something to ensure your eye, nose and mouth are all protected from exposure to respiratory secretions.  

Employers must demonstrate and document good faith efforts to comply with these standards and are required to complete the CDC’s COVID-19 Infection Control Assessment & Response (ICRA) Tool.  ICAR is intended to help facilities prepare and respond to COVID-19 outbreaks by evaluating the status of their current response activities.   

Reporting Health and Safety Violations  

The COVID-19 pandemic has put undue stress on LTCF’s. As a result, some employers have compromised best practices leading to an unsafe work environment. If you are concerned about safety violations at your workplace, you can file a complaint with the New Jersey Department of Labor and Workforce Development (DOLW) and OSHA. The State has also set up a COVID-19 Information Hub that allows you to file a complaint against your employer for COVID-19 violations. You can find that form here. 

Your employer cannot retaliate against you for filing a complaint pursuant to the New Jersey’s Conscientious Employee Protection Act (CEPA) as well as other state and federal laws. N.J.S.A. § 34:19-1 et. seq.   

Am I Required to Get a COVID-19 Vaccine? 

Yes. Under New Jersey Governor Phil Murphy’s Executive Order 252, if you are a full or part-time employee, contractor or other individual providing custodial, operational or administrative support in certain New Jersey health care facilities, you are required to get the COVID-19 vaccination or be subject to weekly testing. Likewise, the federal government issued an emergency regulation requiring employees who work at health care facilities that participate in Medicare and Medicaid programs to be vaccinated. Some of these facilities include: 

• Long-term care facilities; 
• Acute, pediatric, inpatient rehabilitation and psychiatric hospitals, including specialty hospitals and ambulatory surgical centers; 
• Clinic-based settings like ambulatory care, urgent care clinics, and dialysis centers;
• Licensed home health agencies.

If your employer does require the vaccine and you have a medical condition or sincerely held religious belief that prevents you from taking it, you can request an accommodation. 

Long-term care facilities have suffered greatly in this pandemic and employees are caught in the middle of caring for vulnerable patients and keeping themselves and their families safe. If you have raised concerns with your employer about safety measures at your workplace and feel your concerns have not been addressed, McOmber McOmber & Luber P.C. has experienced lawyers to help you. Please call our office in Red Bank, New Jersey at 732-842-6500, our Marlton, New Jersey office at 856-985-9800 or our Newark, New Jersey office at 973-878-9040 to find out more.