The new episode of Employment Law This Week offers a year-end roundup of the biggest employment, workforce, and management issues in 2016:

  • Impact of the Defend Trade Secrets Act
  • States Called to Ban Non-Compete Agreements
  • Paid Sick Leave Laws Expand
  • Transgender Employment Law
  • Uncertainty Over the DOL’s Overtime Rule and Salary Thresholds
  • NLRB Addresses Joint Employment
  • NLRB Rules on Union Organizing

Watch the episode below and read EBG’s Take 5 newsletter, “Top Five Employment, Labor & Workforce Management Issues of 2016.”

Featured on Employment Law This Week: The Occupational Safety and Health Administration (OSHA) has issued a final rule for handling retaliation under the Affordable Care Act (ACA).

The ACA prohibits employers from retaliating against employees for receiving Marketplace financial assistance when purchasing health insurance through an Exchange. The ACA also protects employees from retaliation for raising concerns regarding conduct that they believe violates the consumer protections and health insurance reforms in the ACA. OSHA’s new final rule establishes procedures and timelines for handling these complaints.  The ACA’s whistleblower provision provides for a private right of action in a U.S. district court if agencies like OSHA do not issue a final decision within certain time limits.

Watch the segment below:

Employers Under the Microscope: Is Change on the Horizon?

When: Tuesday, October 18, 2016 8:00 a.m. – 4:00 p.m.

Where: New York Hilton Midtown, 1335 Avenue of the Americas, New York, NY 10019

Epstein Becker Green’s Annual Workforce Management Briefing will focus on the latest developments in labor and employment law, including:

  • Latest Developments from the NLRB
  • Attracting and Retaining a Diverse Workforce
  • ADA Website Compliance
  • Trade Secrets and Non-Competes
  • Managing and Administering Leave Policies
  • New Overtime Rules
  • Workplace Violence and Active-Shooter Situations
  • Recordings in the Workplace
  • Instilling Corporate Ethics

This year, we welcome Marc Freedman and Jim Plunkett from the U.S. Chamber of Commerce. Marc and Jim will speak at the first plenary session on the latest developments in Washington, D.C., that impact employers nationwide.

We are also excited to have Dr. David Weil, Administrator of the U.S. Department of Labor’s Wage and Hour Division, serve as the guest speaker at the second plenary session. David will discuss the areas on which the Wage and Hour Division is focusing, including the new overtime rules.

In addition to workshop sessions led by attorneys at Epstein Becker Green – including some contributors to this blog! – we are also looking forward to hearing from our keynote speaker, Former New York City Police Commissioner William J. Bratton.

View the full briefing agenda here.

Visit the briefing website for more information and to register, and contact Sylwia Faszczewska or Elizabeth Gannon with questions. Seating is limited.

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.

shutterstock_ebolaThe 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.

State Plans may include additional requirements.  Cal/OSHA, for example, mandates that employees receive live, in-person safety training – electronic training modules are prohibited.  OSHA has stated that the Cal/OSHA requirements for employees working with patients infected with Ebola “may provide useful guidance for protecting [health care] workers exposed to Ebola virus.”

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.

 

 

 

 

 

 

 

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
  • Workplace violence
  • Bloodborne pathogens
  • Tuberculosis
  • 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.
  • Watch Epstein Becker Green’s complimentary webinar entitled “Health Care in the Crosshairs: OSHA’s New Health Care Enforcement Initiative,” which provides substantial guidance on the health care enforcement initiative, how best to prepare for it, and the art of navigating an OSHA inspection.

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.

On April 2, 2015, Thomas Galassi, Director of the Directorate of Enforcement for OSHA, sent a memorandum to all Regional Directors announcing that the agency’s National Emphasis Program on Nursing and Residential Care Facilities would be extended until replaced by updated guidance or removed by the agency.  Mr. Galassi went on to state that, because the health care industry reports more work-related injuries and illnesses than any other general industry,

the Agency will continue to use both enforcement and collaborative efforts to address hazards such as musculoskeletal disorders from lifting patients or residents, exposures to tuberculosis, bloodborne pathogens, workplace violence, and slips, trips and falls. We are advising you of the Agency’s intent to soon issue updated guidance that instructs OSHA offices to allocate enforcement and other resources to additional inpatient healthcare facilities, such as nursing homes and hospitals that have occupational illness and injury rates above the industry average.

Also on April 2, OSHA published its revised “Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers” (see related coverage).  Soon thereafter, on May 14, 2015, OSHA and the National Institute for Occupational Safety and Health (“NIOSH”) released the Hospital Respiratory Protection Toolkit, providing detailed guidance for health care employers to use in an effort to protect employees from exposure to infectious diseases and other respiratory hazards.

Notably, both of those guidance documents include a preface reminding employers that the Occupational Safety and Health Act (“Act”) requires employers to comply with safety and health standards and regulations promulgated by OSHA and that, in addition, the Act’s General Duty Clause requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm.  Employers should not take these statements lightly.

There is no workplace violence prevention standard. Although there is a respiratory standard, the guidance contained in the Hospital Respiratory Protection Toolkit includes requirements that exceed existing OSHA standards.  OSHA is sending a clear sign to health care employers that, if their workplace violence or respiratory protection programs are found wanting, the agency will issue citations under the General Duty Clause.  In fact, in the Hospital Respiratory Protection Toolkit, OSHA went so far as to state that OSHA requires health care employers to evaluate the workplace and expects hospitals to develop respiratory protection policies based on guidance from the Centers for Disease Control and other public health guidance.  Otherwise, “in the event of an OSHA compliance investigation, an employer’s failure to implement respirator use according to recognized and generally accepted good infection control practices and public health guidance could result in an OSHA citation.”

So what should health care employers be doing right now to prepare for OSHA’s intensely increased scrutiny?

  • Carefully review Epstein Becker Green’s OSHA Inspection Checklist to ensure that you are thoroughly prepared for an inspection.
  • Review the Healthcare Section of OSHA’s website, paying particular attention to the Standards/Enforcement tab, the new Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers, and the new Hospital Respiratory Protection Toolkit. If you are not already in compliance with the applicable standards and guidance, begin compliance efforts immediately.
  • Work with counsel to conduct an internal compliance audit of your facilities, particularly if any facilities have a particularly high rate of work-related injuries and illnesses (be sure to work with outside counsel in conducting such audits so that the resulting audit reports are protected from disclosure by the attorney-client privilege, otherwise OSHA may be able to subpoena the audit reports and use them to identify potential health and safety issues in the workplace).

The bottom line is that OSHA is coming. Accordingly, employers in the health care industry should act now to ensure that their employees are working in the safest possible conditions and that, when OSHA appears at their door, they can demonstrate their commitment to employee health and safety.

For many years, OSHA has stressed the need for enhanced workplace violence policies to protect health care and social service workers.  The agency released guidelines for workplace violence prevention in the health care and social services industries in both 1996 and 2004, recognizing that caregivers are at an increased risk of unpredictable, violent behavior from the very people whom they provide care to.  In spite of these efforts, violence in health care and social service workplaces continues to rise.  In 2013, the Bureau of Labor Statistics reported more than 23,000 serious injuries due to assault at work.  More than 70 percent of those assaults took place in health care or social service settings.  Health care and social service workers are almost four times more likely than the average private sector worker to be injured as a result of an assault.

Re-emphasizing its commitment to reducing this risk, OSHA published its revised Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers on April 2, 2015.  The revised guidelines are significantly more comprehensive than those released by the agency in the past, and they include a number of tools, such as a workplace violence prevention program checklist, to enable employers to more easily navigate and implement OSHA’s suggested strategies.

The new guidance calls for a five-part program consisting of:

  1. management commitment and worker participation—OSHA deems management responsible for controlling hazards by, among other things, urging all levels of management to become deeply involved in all aspects of the workplace violence prevention program, and worker participation should be required because workers can help identify and assess workplace hazards;
  1. worksite analysis and hazard identification—management and workers are called upon to work together to assess records, existing procedures, and operations for jobs, employee surveys, and workplace security analyses;
  1. hazard prevention and control—after the worksite analysis is complete, employers should take appropriate steps to prevent or control the identified hazards and periodically evaluate the effectiveness of the chosen controls and improve, expand, or update them, as needed;
  1. safety and health training—all workers (including contractors and temporary employees) should receive training on the workplace violence prevention program at least annually and, in particularly high-risk settings, as often as monthly or quarterly to effectively reach and inform all workers; and
  1. recordkeeping and program evaluation—OSHA logs of Work-Related Injuries and Illnesses (OSHA Form 300), worker injury reports, information regarding patients with a history of violence, and other documents reflecting trends or patterns at the workplace should be studied and the effectiveness of the workplace violence prevention program should be frequently evaluated and improved, as necessary.

Although there is no formal OSHA standard regarding workplace violence, the agency has invested significant resources into providing health care and social service employers with an all-encompassing set of guidelines to enable these employers to create high-quality workplace violence prevention programs.  OSHA has already announced that it intends to increase enforcement efforts in the health care and social services industries in the coming year. If OSHA conducts an inspection and finds that an employer’s workplace violence prevention program is lacking, the agency could issue the employer a citation under the General Duty Clause for failing to provide workers with a safe and healthy work environment.

Accordingly, health care and social service employers are well advised to review OSHA’s new guidelines and to work closely with employees to develop a program appropriate for their worksites.  Taking this step will provide critically important protection for employees, increase employee engagement in safety and health efforts, and reduce the possibility of receiving a citation for an inadequate workplace violence prevention program.

James S. Frank, a Member in the Health Care and Life Sciences and Labor and Employment practices, and Serra J. Schlanger, an Associate in the Health Care and Life Sciences practice, co-authored an article for the American Health Lawyers Association (AHLA) entitled “Hospitals’ Heavy Lifting:  Understanding OSHA’s New Hospital Worker and Patient Safety Guidance.”

The article, published in AHLA’s Spring 2014 Labor & Employment publication, summarizes OSHA’s new web-based “Worker Safety in Hospitals” guidance, explains how the guidance relates to OSHA’s existing regulatory framework, and details what OSHA considers necessary for an effective Safe Patient Handling Systems as well as an effective Safety and Health Management System.

The article goes on to forecast what OSHA’s Hospital Safety guidance will mean in the future for employers in the healthcare industry, including:

  1. More Whistleblower Complaints;
  2. Heavier enforcement by OSHA;
  3. Increased enforcement by the Joint Commission; and
  4. Greater interest in safety and health related legislation.

 

Finally, the article provides recommendations for what hospital and health system employers can do now to prepare for these developments, including:

  1. Reviewing and digesting the new OSHA hospital patient and employee safety resource;
  2. Work with employees and/or contractors to improve Safe Patient Handling Programs and/or a Safety and Health Management Systems; and
  3. Prepare for more safety-related whistleblower complaints by setting up effective processes to quickly investigate and address complaints and employee injuries and illnesses.

 

Below are some excerpts from the article:

On January 15, 2014 the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) launched a new online resource to address both worker and patient safety in hospitals.

According to OSHA, a hospital is one of the most dangerous places to work, as employees can face numerous serious hazards from lifting and moving patients, to exposure to chemical hazards and infectious diseases, to potential slips, trips, falls, and potential violence by patients—all in a dynamic and ever-changing environment. . . . Continue Reading Hospitals’ Heavy Lifting: Understanding OSHA’s New Hospital Worker and Patient Safety Guidance

By Eric J. Conn, Head of Epstein Becker & Green’s OSHA Practice Group

OSHA recently announced a campaign to raise awareness about the hazards likely to cause musculoskeletal disorders (MSDs) among health care workers responsible for patient care.  Common MSDs suffered in the patient care industry include sprains, strains, soft tissue and back injuries.  These injuries are due in large part to over exertion related to manual patient handling activities, often involving heavy lifting associated with transferring and repositioning patients and working in awkward positions.

“The best control for MSDs is an effective prevention program,” said MaryAnn Garrahan, OSHA’s Regional Administrator in Philadelphia. “[OSHA’s] goal is to assist nursing homes and long-term care facilities in promoting effective processes to prevent injuries.”

As part of the campaign, OSHA will provide 2,500 employers, unions and associations in the patient care industry in Delaware, Pennsylvania, West Virginia and the District of Columbia with information about methods used to control hazards, such as lifting excessive weight during patient transfers and handling.  OSHA will also provide information about how employers can include a zero-lift program, which minimizes direct patient lifting by using specialized lifting equipment and transfer tools.  Here is a resource regarding Safe Patient Handling from OSHA’s website.

Employers in the healthcare industries should be on high alert, because whenever OSHA provides information about hazards it believes are present, a focus on enforcement is soon to follow.  This is particularly true when it comes to hazards for which OSHA has no specific standards or regulations, like ergonomics.  In these circumstances, OSHA is limited in its enforcement to use of Sec. 5(a)(1) of the OSH Act – the General Duty Clause.  The General Duty Clause is used by OSHA to issue citations in the absence of a specific standard, in situations where employers have not taken steps to address “recognized serious hazards.”  Efforts like OSHA’s present campaign to advise healthcare employers about hazards in their workplaces, is OSHA’s way of making you “recognize” the hazard, so the Agency can more easily prove General Duty Clause violations.

Of course, there are plenty of other reasons that healthcare employers should take note of the rate of MSD cases in patient care work.  Continue Reading OSHA Launches Ergonomics Campaign in Healthcare Industries