On May 12, 2016, OSHA published significant amendments to its recordkeeping rule, requiring many employers to submit work-related injury and illness Recordkeepinginformation to the agency electronically.  The amendments also include provisions designed to prevent employers from retaliating against employees for reporting injuries and illnesses at work.  The information employers provide will be “scrubbed” of personally identifiable information and published on OSHA’s website in a searchable format.

The Basics

Every workplace with 250 or more employees will be required to electronically submit  OSHA 300 Logs, 301 Forms, and 300A summaries on an annual basis.  Workplaces with 20 or more employees in industries that OSHA has deemed hazardous and listed in the rule must submit OSHA 300A summaries to OSHA electronically on an annual basis as well.  The information kept in the logs and on the forms remains the same, as does the calculus for determining whether an injury or illness is a recordable.

The new requirements will be phased in, requiring employers to electronically submit their 300A summaries on July 1, 2017 and their 300 Logs, 301 Forms and 300A summaries on July 1, 2018.  State plans are required to adopt systems with the same deadlines.

The Problems

OSHA plans to rely upon computer software to remove personally identifiable information from these records.  The software will supposedly remove all of the fields that contain identifiers such as the employee’s name, address, and work title, and to search the narrative field in the form to ensure that no personally identifiable information is contained in it.  OSHA’s reliance on a computer system to detect every piece of identifiable information in a narrative is terribly risky and increases the potential for a data breach.

The publication of this information on a searchable database will allow the public, including the press, to seek out employers with what appear to be higher than average numbers of injuries and illnesses and continue the public shaming campaign so often relied upon by OSHA under the Obama administration.  The public dissemination of this information also simplifies the process of unionization, permitting unions to identify possible targets based on perceived unsafe working conditions.

Although there are already whistleblower protections in place to prevent retaliation by employers when employees report injuries and illnesses, the new rule includes a number of additional anti-retaliation protections, including a provision that dramatically limits an employer’s ability to test for drug use when an employee has been involved in an incident.  Under the new rule, post incident testing is to be limited to situations in which the possibility that the employee was impaired by drug use is quite likely to have contributed to the incident and for which the test can accurately identify impairment caused by drug use.  In many cases, such as when an employee may have been impaired by marijuana at the time of the incident, employers are essentially left with no ability to test as there are multiple ways to test for the presence of the drug in an employee’s system, but no established standard for what constitutes marijuana impairment.  This issue is increasingly important as states such as Colorado make recreational marijuana use lawful.

So What Should Employers Do Now?

  • Train employees on the new rules and when they go into effect.
  • Ensure that employees understand that they will not be retaliated against for reporting work-related injuries and illnesses and are, in fact, encouraged to report them.
  • Re-train the employee(s) responsible for injury and illness recordkeeping on the basics of recordkeeping and provide thorough training on the new rule with an emphasis on protecting personally identifiable information to the extent possible while remaining in compliance with the new regulatory requirements.
  • Review and revise drug testing policies to bring them into compliance with the requirements of the new rule.

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.

 

 

 

 

 

 

 

I recently authored Epstein Becker Green’s March issue of Take 5 in which I outline actionable steps that employers can take to improve safety and avoid costly OSHA citations. Take 5 banner

Following is an excerpt:

The Occupational Safety and Health Administration (“OSHA”) was created by Congress to ensure safe and healthful working conditions for employees. OSHA establishes standards and provides training and compliance assistance. It also enforces its standards with investigations and citations.

Although it’s impossible for employers to mitigate against every conceivable hazard in the workplace, there are five critical steps that every employer should take to improve safety in the workplace—and avoid costly OSHA citations. Read on for the steps:

  1. Conduct an Internal Safety and Health Audit Under Attorney-Client Privilege
  2. Create a Strong Safety Culture
  3. Ensure That Safety and Health Documentation Is Current and Well Communicated
  4. Train Employees in Safety and Health, Regularly and Comprehensively
  5. Protect Contractors and Temporary Workers, Too

Click here to read the full Take 5 online.

On November 21, 2014, the Department of Labor released its Agency Rule List, which provides the status of all rulemaking efforts at each of its agencies.  OSHA dominated the list of regulatory activity in the Department, listing 26 regulations in the prerule, proposed rule, and final rule stages. 

Of these 26 items, OSHA announced that its top regulatory priorities include:

  • Efforts to control exposure to crystalline silica
  • Enhancements to current infectious disease protocols in healthcare and other high risk environments
  • Issuance of a final rule modernizing its reporting system for occupational injuries and illnesses, requiring electronic submission of injury and illness survey data, which, notably, would be made publicly available
  • Issuance of final rules regarding procedures for handling whistleblower complaints under 9 of the 22 federal statutes which include whistleblower protection provisions that OSHA has been tasked with investigating and enforcing

Hidden among the collection of proposed regulatory actions is OSHA’s plan to issue a Notice of Proposed Rulemaking by the end of the year seeking to amend its recordkeeping regulations to clarify that the duty to make and maintain accurate records of work-related injuries and illnesses is an ongoing obligation.  This proposal is clearly an attempt to circumvent the Volks decision by the D.C. Circuit Court of Appeals (AKM LLC dba Volks Constructors v. Secretary of Labor, 675 F.3d 752 (D.C. Cir. 2012)), in which the court held that a plain reading of the six-month statute of limitations in the OSH Act limits the period of time in which OSHA can issue a recordkeeping citation to six months.  Otherwise, the court reasoned, the Secretary of Labor could rely upon document retention rules contained within various OSHA standards to tack on extra time to the statute of limitations, potentially leading to absurd results and giving the Secretary the leeway to extend the statute of limitations forever, simply by adding a never-ending document retention requirement to any given recordkeeping rule.

Finally, and predictably, two longstanding controversial topics were relegated to the agency’s long term action list.  Both the proposed stand-alone combustible dust standard and updates to the recently amended Hazard Communication Standard (which includes the undefined term “combustible dust” within the definition of “hazardous chemicals” regulated under the standard) have been added to the list, indicating that regulated industries must continue waiting for a clear and intelligible definition of the term.  And the so-called “I2P2” (Injury and Illness Prevention Program) has also been shelved for an indeterminate period of time.

 

With the holiday shopping season fast approaching, OSHA has reached out to retailers strongly encouraging them to adopt a set of Crowd Management Safety Guidelines for Retailers, in addition to their existing safety and health policies and procedures.

Citing the tragic death of a retail employee who was crushed during a stampede at a Black Friday event in 2008, OSHA has urged the adoption of these crowd control protocols as a critical step for employers and store owners to take in ensuring employee safety during the holiday shopping rush, and other events where large crowds may gather.  OSHA recently sent letters directly to major retailers, retail trade associations, and fire marshals enclosing its recommended crowd management guidelines and encouraging employers and first responders to establish a plan well ahead of events likely to draw large crowds, such as Black Friday.

Crowd management plans should include, at a minimum:

  • Barricades or rope lines that do not start immediately in front of store entrances to manage pedestrian traffic;
  • Police officers or other trained security or crowd management personnel on site;
  • Communication to shoppers of updated information about the event and the store, such as the location of entrances and exits, store opening and closing times, and the location of hot items within the store;
  • Additional staff sufficient to meet the needs of large crowds of customers;
  • Crowd management training for all employees to ensure that they understand how to manage the event;
  • Prevention of additional shoppers from entering the store when it is at or near its maximum occupancy level;
  • Clear and unobstructed pathways to all exit doors, which should be unlocked;
  • Emergency procedures in place in case a dangerous situation does arise; and
  • Instructions to employees that in the event of an emergency they should follow instructions from first responders regardless of company rules.

If they have not already done so, retailers should begin crowd management planning for Black Friday now.  Reach out to local police and other first responders to inform them if large crowds are expected at your stores on Black Friday and coordinate a response plan in case an emergency takes place.  Taking time to employ these simple measures will go a long way towards ensuring that employees enjoy a safe and healthy holiday season.

By Valerie Butera

OSHA requires employers to provide safe jobs and workplaces for their employees. And generally employers can rely upon established OSHA standards to guide them in reaching that goal. But faced with employers’ numerous questions and concerns regarding Ebola hemorrhagic fever (Ebola) now that several patients with Ebola have been treated in the United States, OSHA has been slow to provide answers.

To date, OSHA has advised employers that certain established standards may apply in the event of possible worker exposure to Ebola. The agency has also issued a Fact Sheet providing guidance for workers and employers in non-healthcare/non-laboratory settings on cleaning and decontamination of Ebola on surfaces. In addition, OSHA has made clear that the so-called “General Duty Clause,” which requires employers to keep their workplaces free of recognized hazards that can cause death or serious harm to workers may be used to fill any gaps that existing OSHA standards do not cover, enabling OSHA to issue citations to employers that it determines have not taken every appropriate precaution to protect its employees.

In the absence of more specific guidance from OSHA, employers can take several steps now to reduce the risk of receiving an OSHA citation and, more importantly, help protect their employees from exposure to Ebola:

  • Conduct a risk assessment at your workplace, documenting your findings and actions taken to address the any identified issues.
  • Provide additional training necessary to protect employees from any risks identified in the risk assessment.
  • Inform employees if any of their job activities may put them at risk for exposure to Ebola.
  • Ensure that your employees have been provided with all of the personal protective equipment (PPE) needed for them to safely do their jobs.
  • Ensure that employees fully understand how to use the PPE by providing training on its use and conducting practice sessions using the equipment.
  • Establish a policy requiring supervisors to provide updated Ebola-related information as to employees as it develops.
  • Establish a point of contact for employees to address any questions they may have related to Ebola.

Above all, employers must keep open lines of communication with their employees. Employees may be fearful about their work conditions right now and need to know that their employers are on top of the situation and doing everything possible to ensure employee health and safety. This will not only improve employee morale – it will also reduce the likelihood of an unhappy employee filing a whistleblowing complaint with OSHA.