Under a new bipartisan budget bill, OSHA civil penalties will rise next year to reflect the difference between the Consumer Price Index in 1990 and in 2015 – an increase of as much as 82%. After this “catch up” adjustment, the fines will keep pace with inflation moving forward. Valerie describes how employers can boost their safety programs and avoid OSHA citations.
OSHA has been unable to increase the civil penalties it can impose when an employer is cited for a violation since 1990. But that is all about to change. Hidden within the Bipartisan Budget Act of 2015, signed by President Obama on November 2, 2015, is a provision requiring OSHA to significantly increase its civil penalties. A one-time “Catch Up Adjustment” will be based on the percentage difference between the Consumer Price Index in October 2015 (to be released later this month) and October 1990 – resulting in a penalty increase of approximately 80%. This means that the $7,000 cap on serious violations would grow to $12,600 and the $70,000 limit on willful and repeat violations would increase to $126,000. Had OSHA applied this increase to fiscal year 2014 penalties, which totaled $143.6 million, the total would have jumped to $258.5 million. After this initial adjustment is made, OSHA will be required to adjust penalties every year using the annual percentage increase in the Consumer Price Index.
Although the agency is not required to take the full penalty increase, it probably will. OSHA has tried for years to convince Congress to increase the civil penalties the agency can impose when an employer is cited for a violation. Most recently, on October 7, 2015, Assistant Secretary of Labor for OSHA, Dr. David Michaels, told a House subcommittee that the “most serious obstacle to effective OSHA enforcement of the law is the very low level of civil penalties allowed under our law, as well as weak criminal sanctions,” and that “OSHA penalties must be increased to provide a real disincentive for employers accepting injuries and worker deaths as a cost of doing business.”
The budget changes go into effect July 1, 2016 and the increased penalties will take effect by August 1, 2016 in all states regulated by Federal OSHA. The law does not automatically apply to states regulated by State Plans, but since State Plan programs must be at least as effective as Federal OSHA, State Plans are likely to increase civil penalties as well.
This change adds yet another powerful weapon to OSHA’s growing enforcement arsenal. OSHA under the Obama administration has made liberal use of the General Duty Clause, weighted inspections, and new reporting requirements – all of which have resulted is OSHA inspections of industries and employers that it has never targeted before. Now more than ever, employers should be prepared for a potentially costly encounter with OSHA.
Employers are well-advised to:
Ensure that safety programs are comprehensive and up to date
Ensure that employees receive all necessary safety training, can demonstrate that they understood the training, and that all training is well-documented
Assess the workplace for hazards and address any identified hazards as quickly as possible
Talk with union representatives or employees at non-unionized facilities about their safety concerns and address any bona fide concerns as quickly as possible
Taking these steps will demonstrate the employer’s commitment to safety and help reduce the possibility of receiving what soon will be very costly OSHA citations.
In one of the news stories on Employment Law This Week – Epstein Becker Green’s new video program – EBG attorney George Whipple details OSHA’s recently increased focus on the health care and nursing care industries. The agency’s fines have historically been very low, but recently OSHA cited medical patient transportation company LifeFleet for several violations totaling more than $235,000. See below to view the episode or read more about how to stay compliant and avoid heavy fines.
The Ebola outbreak of October 2014 and the infection of health care workers treating infected patients in the United States dominated the headlines and frightened the nation. One year later, training and preparation for the next Ebola is fragmented and some nurses feel unprepared for the next pandemic disease. The Department of Health and Human Services (HHS) designated a system of 55 hospitals nationwide to manage suspected Ebola cases, but all hospitals have the potential to encounter a patient infected with Ebola or other pandemic disease, just as Texas Health Presbyterian Hospital discovered last year when a patient infected with Ebola presented to its emergency department. Subsequently, two of the hospital’s nurses contracted Ebola while attempting to provide lifesaving care to this patient. OSHA did not penalize the hospital because it was one of the first facilities to provide care to a patient infected with the virus. But it is entirely possible that OSHA could issue citations to hospitals that remain unprepared to safely respond to pandemic diseases now that a year has passed and engineering and administrative controls effective in reducing the spread of infectious diseases are now much more commonly known.
An independent investigation and a nurse’s subsequent lawsuit provide a glimpse into how lack of preparation and training contributed to the two nurses contracting Ebola at Texas Health Presbyterian Hospital. The hospital admitted in a Congressional hearing that nurses had not received Ebola training. And allegedly the supervisor of one of the infected nurses “Googled” protection gear before sending her in to treat the patient infected with Ebola. The independent investigation concluded that the hospital was “not prepared to diagnose and manage a patient who came to their facility without a preexisting diagnosis of Ebola.”
OSHA does not yet have published infection control regulations (proposed rules are expected in 2016), but healthcare employers still face liability under OSHA’s existing bloodborne pathogen and tuberculosis regulations as well as under the General Duty Clause. In its recent “Inspection Guidance for Inpatient Healthcare Settings,” OSHA references Centers for Disease Control and Prevention (CDC) guidelines including guidance for Isolation Precautions. The CDC has also published updated guidance specific to Ebola on its website.
Health care facilities should consider taking the following steps to improve employee safety when treating patients infected with Ebola and other pandemic diseases:
Follow published CDC recommendations regarding Ebola and the necessary health care provider protective measures.
Follow CDC recommendations to stock at least 12 to 24 hours’ worth of personal protective equipment (PPE) to protect medical providers against Ebola transmission. This should provide enough time for a hospital to arrange transportation of a patient potentially infected with Ebola to an official HHS assessment or treatment facility for continued care.
Conduct in-person training regarding infection control and include hands-on practice donning, using, and doffing of PPE. This training should include performing necessary job tasks while using the PPE. Test employee understanding of the training to ensure comprehension.
Evaluate additional engineering controls including enhancements to electronic health record software to ensure staff members are asking the necessary screening questions and that any critical answer is easily visible and communicated to other care providers.
Consult with counsel regarding the development and implementations of these and other workplace safety measures so that the health care facility is prepared if OSHA initiates an inspection.
As discussed in a previous post, OSHA recently intensified its scrutiny of the health care and nursing care industries. In one recent example, OSHA cited a medical patient transportation company for training shortfalls and bloodborne pathogen violations and proposed fines totaling almost $236,000. In discussing the magnitude of the citations, Howard Eberts, OSHA’s area director in Cleveland, made clear that “[f]ailing to protect workers from pathogens that can cause life-threatening diseases is unacceptable.” Health care facilities should take heed and make sure that comprehensive precautions are put in place to promote a safe work environment for employees even in the most challenging situations — such as treating patients exposed to a pandemic disease.
While the Occupational Safety and Health Act’s definition of “employer” is not identical to the definition in the National Labor Relations Act, there can be no doubt that the NLRB’s Browning Ferris decision is likely to influence OSHA’s approach to inspections and citations involving temporary or contract employees.
When OSHA’s temporary employee initiative was announced in 2013, Assistant Secretary of Labor for Occupational Safety and Health, Dr. David Michaels, declared that “Temporary staffing agencies and host employers share control over the employee, and are therefore jointly responsible for temp employee’s safety and health. It is essential that both employers comply with all relevant OSHA requirements.” Although inspections under the temporary employee initiative sometimes result in citations being issued to both the host employer and the staffing agency, more often than not, only the host employer is cited because it is perceived as having a greater ability to control or prevent the temporary employee’s exposure to a hazard. Should OSHA adopt the reasoning of the Browning Ferris decision, this trend will surely change, significantly increasing staffing agencies’ exposure to OSHA citations even when the staffing agency had no control over the workplace or awareness of the hazard.
Similarly, contractors will face increased exposure to OSHA citations should OSHA follow Browning Ferris. Under the agency’s multi-employer worksite citation policy, OSHA may cite an employer for hazards that other employers’ employees were exposed to when OSHA finds that the employer controlled the hazard, created the hazard, or was responsible for correcting the hazard. Applying the reasoning of Browning Ferris to this policy could considerably expand the number of employers cited, treating multiple contractors as controlling employers regardless whether they had any real control over the hazards at the worksite.
The Occupational Safety and Health Administration (“OSHA”) recently intensified its scrutiny of the health care and nursing care industries. On June 25, 2015, the agency announced a new enforcement initiative targeting inpatient health care and nursing care facilities. But this increased scrutiny of the health care and nursing care industries does not end there—OSHA is spreading its enforcement reach to other types of health care entities.
Recently, OSHA cited LifeFleet LLC, an Ohio medical patient transportation company, for training shortfalls and bloodborne pathogen violations. OSHA alleged multiple violations, including several costly willful violations, and is seeking fines totaling nearly $236,000—a notably large amount. Typically, the fines associated with OSHA citations are very low, unless they are associated with fatalities. There were no fatalities in this case.
In discussing the magnitude of the fines against LifeFleet, OSHA’s Cleveland Area Office Director Howard Eberts said, “Failing to protect workers from pathogens that can cause life-threatening diseases is unacceptable. As a medical service provider, LifeFleet should be setting the standard in employee protection – not ignoring it.”
What does this mean to health care and nursing care employers? OSHA is targeting all health care and nursing care facilities, not just inpatient facilities. The agency is sending a clear message to the health care and nursing care industries in issuing citations carrying unusually heavy fines.
How to Prepare
Here are a few action steps that employers can take right now to prepare for an OSHA inspection:
Conduct an internal OSHA compliance audit with the assistance of knowledgeable counsel to maximize the basis for the assertion of attorney client privilege as to the audit as in furtherance of providing legal counsel on OSHA compliance. (Remember, if an internal audit is conducted without the aid of outside counsel, the audit results can be subpoenaed by OSHA and used as a guide to potential violations at the facility.) The cost of defending OSHA citations can easily be hundreds of thousands of dollars. The cost of conducting an internal audit and addressing hazards before an OSHA inspection is trivial by comparison.
Review all health and safety training programs. Ensure that all employees have been thoroughly trained—and have received refresher training, when appropriate—on all aspects of the facility’s health and safety policies and that they can demonstrate that they understood the training. It is advisable to conduct a quiz after each training session in order for employees to demonstrate their comprehension of the training and to keep quiz results and training attendee lists on file.
Consult with an OSHA attorney regarding preparations for an OSHA inspection. Most health care and nursing care employers have never experienced an OSHA inspection (LifeFleet, for example, had never been inspected before) and may not be aware of strategies that can be used to minimize work disruption during an inspection and reduce the likelihood of receiving an unwarranted citation.
OSHA enforces the whistleblower provisions of 22 separate statutes. The number of retaliation claims filed under the various statutes has risen steadily each year and the cost of investigating them has placed a tremendous strain on OSHA’s fiscal and physical resources. Searching for a way to reduce the costly and time consuming process of an investigation and litigation, OSHA conducted pilot Alternative Dispute Resolution (ADR) programs in two of its regions from October 2012 to September 2013. The pilot programs were well received by employers and whistleblowers alike, allowing for quick resolutions of disputes without the need of enduring a lengthy and burdensome OSHA investigation. These pilot programs were such a success that on August 19, 2015, OSHA published CPL 02-03-006, Alternative Dispute Resolution (ADR) Processes for Whistleblower Protection Program, which affords all OSHA regions with the option of adopting an ADR program at the discretion of each Regional Administrator.
In what OSHA is calling its “early resolution” process, the parties to a whistleblower complaint agree to attempt to resolve the whistleblower complaint with the assistance of a neutral, confidential OSHA representative who will not be involved in the investigation if the ADR is unsuccessful. The early resolution process can be elected either before a case has been assigned for an investigation or at any point during an ongoing investigation. The investigation will be stayed while the parties pursue the ADR. The goal of the program is to achieve a quick, voluntary resolution of a whistleblower dispute rather than undertaking an investigation to determine the validity of the complaint and potential statutory violations. A settlement may be reached at any time after the filing of the complaint and prior to the issuance of the Secretary’s findings or the Secretary’s filing of a complaint in federal district court. If the parties elect to pursue early resolution but fail to enter into a settlement agreement within a reasonable period of time, the case will be transferred to an OSHA whistleblower investigator to start or resume investigation of the complaint.
Parties in whistleblower cases also have the option of settling their whistleblower complaint independently or with the assistance of an investigator or other ADR service during the OSHA investigation. So how do employers determine whether the early resolution process is right for them? Employers should consider these core concepts:
The early resolution process is entirely voluntary. Both parties must mutually agree to participate, and either may choose to terminate the process and return the case to the investigatory process for any reason.
OSHA will assign a Regional ADR coordinator (RADRC) to assist the parties in resolving a whistleblower complaint by mutual agreement. RADRCs are completely neutral and have no decision-making authority. Although the RADRC may give the parties an objective view on the strengths and weaknesses of their positions, he or she may not offer judgment on the merits of the case.
OSHA demands that the parties participate in the early resolution process in good faith, treating one another and the RADRC with respect throughout the process. Parties must come to the process fully prepared to discuss resolution of the whistleblower complaint and have full authority to settle the dispute. If OSHA determines that one or both of the parties are not participating in the early resolution process in good faith, the RADRC may terminate the effort and return the case to investigators.
The early resolution process is confidential. The RADRC will not discuss the merits of the complaint or the content of the early resolution discussions with OSHA’s investigators. ADR case files will be kept separate from investigation files and their content is generally exempt from disclosure under FOIA. Keep in mind, however, that the terms of an OSHA whistleblower settlement agreement, whether agreed upon during the early resolution process or by other means, will be disclosed to OSHA and may be made public by OSHA in response to a FOIA request or otherwise.
This option may significantly reduce the cost of responding to a whistleblower complaint. An investigation may disrupt your business affecting productivity and can lead to full blown federal litigation. It costs nothing to attempt to agree upon a resolution that satisfies the parties. OSHA even offers early resolution conferences by telephone in the event that travel to attempt early resolution would be too costly or create hardship for either party.
And employers must also evaluate many of the same risks and benefits they would assess in considering ADR and settlement versus litigation generally: What are the risks and costs in litigating the case versus settling? What precedent could litigating the case create? How much time will litigating the case and possibly appealing the verdict consume versus the quick finality of reaching a settlement?
As previously discussed, OSHA has been carefully scrutinizing the health care industry lately. And on June 25, 2015, OSHA officially introduced a new compliance nightmare for the inpatient health care and nursing home industries by announcing the details of the agency’s new health care enforcement initiative in a memorandum from Dorothy Dougherty, Deputy Assistant Secretary of Labor for Occupational Safety and Health, to OSHA Regional Administrators and State Plans. The memorandum is entitled “Inspection Guidance for Inpatient Healthcare Settings” (“guidance memo”).
The guidance memo requires both federal OSHA Regional Offices and State Plans to evaluate the number of work-related injuries and illnesses at inpatient health care and nursing home facilities in their areas and to target those facilities for inspections. Compliance officers are instructed to focus on five major hazards:
Musculoskeletal disorders (“MSDs”) relating to patient or resident handling
Slips, trips, and falls
OSHA also reminded compliance officers that they can and should expand the scope of the inspection when additional hazards come to their attention during the inspection. These hazards include, but are not limited to, exposures to multi-drug resistant organisms, such as Methicillin-resistant Staphylococcus aureus (“MRSA”), and exposures to hazardous chemicals, such as sanitizers, disinfectants, anesthetic gases, and hazardous drugs.
Although there are no OSHA regulations applicable to several of these hazards, compliance officers are urged to rely upon the general duty clause, which enables OSHA to issue citations whenever it finds that an employer has failed to provide safe work and a safe work environment for its employees. In fact, the agency went so far as to include sample general duty clause citation language in the guidance memo that compliance officers may reference in issuing citations related to MRSA, MSDs, workplace violence, and other unregulated hazards that they may identify in the workplace.
It is critical to note that OSHA includes a broad range of inpatient facilities in the list of potential targets. Virtually any type of health care or nursing care facility that provides residential or inpatient services is at risk of an OSHA inspection—particularly if the employer has a high rate of work-related injuries and illnesses.
Employers operating inpatient care facilities should immediately take the following actions to prepare for inspections:
Conduct an internal OSHA compliance audit with the assistance of outside counsel— this audit is protected from disclosure by the attorney-client privilege. Audit reports prepared without the aid of outside counsel can be subpoenaed by OSHA and used as a guide to potential violations at the worksite. Defending an OSHA citation can cost hundreds of thousands of dollars. An audit, by comparison, costs a tiny fraction of that amount and can help you identify and resolve gaps in your health and safety programs, dramatically decreasing the likelihood that a citation will be issued if OSHA targets your workplace. An added benefit of conducting an attorney-client privileged audit is the potential for a reduction in workers’ compensation claims. When an employer addresses the gaps identified in a health and safety audit, it also usually experiences an enormous drop in workers’ compensation costs.
Read the guidance memo. This document identifies a host of other resources that compliance officers are to rely upon in conducting inspections of inpatient care facilities—all of which are publically accessible—essentially giving employers a road map of what compliance officers may identify as hazards in the workplace.
Consult with counsel regarding preparation for an OSHA inspection. Counsel can equip you with a host of strategies before OSHA ever sets foot at your workplace that will enable you to minimize work disruption during an inspection and greatly reduce the possibility of receiving a citation.
Strategic planning is essential to successfully navigating any OSHA inspection, and inspections of inpatient care facilities are imminent. Employers operating inpatient care facilities are well advised to contact counsel as soon as possible so that they are ready to demonstrate their commitment to employee health and safety when OSHA comes knocking.
Although OSHA’s new reporting rule has been in effect for almost seven months now, it has caused some major changes in the way that OSHA operates. Since the new reporting rule went into effect on January 1, 2015, OSHA has received more than 5,000 reports of work-related deaths, inpatient hospitalizations, amputations, and losses of an eye. As OSHA anticipated, compliance with the rule has focused the agency’s attention on industries and hazards that it had not focused on before. For example, because of the unexpectedly high number of reports of amputations from supermarkets, OSHA issued a safety Fact Sheet last month focused on preventing cuts and amputations from food slicers and meat grinders.
Around 40 percent of the newly filed reports have prompted OSHA investigations. Another 46 percent have resulted in what the agency refers to as a “rapid response investigation.” In a rapid response investigation, OSHA contacts the reporting employer to learn more about the incident. The agency often expects the employer to conduct its own investigation into the root cause of the incident, determine how to prevent similar incidents from happening in the future, and report these findings back to OSHA in about a week.
In cases where OSHA is dissatisfied with an employer’s response, such as reports that merely blame the victim, the agency may proceed to conduct its own inspection of the incident. An important related issue has not yet been resolved by the agency—that is, whether statements made in the investigation report that will result from the employer’s root cause analysis will be used as admissions by OSHA in the event of an enforcement action. Accordingly, now more than ever, it is vital for employers to understand how to conduct an effective root cause analysis and produce an effective investigation report that will help them prevent similar incidents from taking place in the future.
Root cause investigations are often conducted by an employee’s supervisor, but a more effective approach involves managers and employees working together, bringing a variety of perspectives to the investigation. As noted above, employers should be wary of merely blaming the victim and should instead investigate the incident thoroughly, interviewing the injured employee and all witnesses and assuring them that they will not be retaliated against for speaking truthfully about the incident. The scene of the incident should also be temporarily cordoned off to enable the investigation team to document the location and any objects that were involved in the incident. When searching for the root cause of an incident, the investigator should always be asking “why?” For example, if a safety procedure was not followed, why was it not followed? If inadequate training was involved, why had the problem not been identified before? By asking enough whys, the root cause of the incident will eventually be revealed, enabling the employer to respond to the situation and minimize or eliminate the possibility of a similar incident occurring in the future.
When recording the findings of the root cause analysis, employers must be mindful to exclude hearsay or conjecture—the content of the report should be completely factual and should include as much of the following information as possible:
Background information, such as where and when the incident took place, who and what were involved, the victim’s role and actions, and everything learned from witness interviews
A full description of the incident, such as the sequence of events, the type of incident, any objects or machinery that were involved, and any unusual circumstances, such as adverse weather or equipment failure
An analysis of why the incident took place, based on everything that the employer discovered during the investigation
Recommended corrective actions that will prevent recurrences
By following these guidelines and ensuring that the recommended corrective actions are implemented, employers can improve employee safety and morale while reducing the risk that their investigation reports will result in an OSHA citation.