The National Labor Relations Board (NLRB) last week issued its decision in Browning Ferris Industries (pdf) adopting new standards for determining when a company will be held to be the joint employer of another company’s employees, whether they are leased, temporaries or providing services under their primary employer’s contracts with customers.  My colleagues Allen B. Roberts, Steven M. Swirsky and D. Martin Stanberry explore the new standards and what they mean for employers  in an article published on Epstein Becker Green’s Management Memo.

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.

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.

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.

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.

Distracted driving is the number one cause of workplace deaths in the United States.  OSHA has partnered with the National Safety Council to call employers’ attention to this issue and urge the adoption of safe driving policies.  Failure to adopt and enforce such policies in the workplace leads to tragic results and OSHA has made it perfectly clear that employers who do not take this issue seriously should expect OSHA citations.  On its distracted driving webpage, the agency has stated that employers “have a responsibility and legal obligation to have a clear, unequivocal, and enforced policy against texting while driving.”

But to truly protect your employees from the hazards of distracted driving, your policy should cover more than just texting.  A comprehensive policy should cover all employees, both handheld and hands-free devices, company vehicles, company cell phones and all work-related communications.  All employees should be forbidden to use cell phones, hands-free devices, and any other mobile electronics while operating a vehicle when:

  • the vehicle is owned, leased, or rented by the employer
  • a personal motor vehicle is used in connection with company business
  • the motor vehicle is on the employer’s property
  • the cell phone or mobile electronic device is owned or leased by the employer
  • the cell phone or mobile electronic device is used to conduct company business

Employers should strongly discourage distracted driving by incorporating written safe driving policies into employee handbooks, providing training on these policies during worker orientation, and providing annual refresher training.  Safe communication practices should be put in place such as established procedures, times, and places for drivers’ safe use of cell phones and other electronic devices for communicating with supervisors, customers, and others.  To the extent that the employer has any programs in place that could incentivize employees to use cell phones or other electronic devices while driving, they should be eliminated.

Finally, safe driving policies must be enforced – it is not enough simply to write a policy and provide employee training.  As we have all become so dependent on our cell phones and other mobile electronic devices, it is likely that some employees will resist or simply ignore these policies, but enforcement is necessary to truly improve employee safety.  Accordingly, employers should reprimand employees who violate safe driving policies and those reprimands should involve serious penalties, including, where appropriate, termination.  There is no way to protect employees from every hazard they may encounter on the road, but implementing a strong safe driving program will go a long way towards decreasing the likelihood of a workplace tragedy on the road.

 

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.

See below for a recording of my recent webinar, “OSHA Forecast: Developments to Watch in 2015 and Beyond.”

As I discuss, in 2015, many more industries will for the first time be required by OSHA to record injuries and illnesses in the OSHA 300 Injury and Illness Recordkeeping log. The reporting of severe injuries or illnesses is also changing, and we anticipate a greater focus on enforcements and inspections.

Topics include:

  • Where we are now and the direction of OSHA in 2015
  • Recording and recordkeeping requirements
  • Whistleblowing and its impact on your business
  • Preparing for increased OSHA inspections of incidents
  • Rulemaking and potential changes in current programs
  • Ebola and other infectious diseases

The video is also available on Epstein Becker Green’s Youtube channelclick here to download the slides.

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.

 

On Monday, December 1 from 10:30 a.m. to 12:00 p.m. Pacific, our colleague Alka Ramchandani will be a featured speaker in a webinar hosted by California Employer Resources.

Ms. Ramchandani will identify the potential risks and liability associated with retaining temporary workers in California. She will provide strategies on how to minimize risk and liability when hiring temporary workers by ensuring all contractual agreements, expectations, and performance requirements are in place. 

As California companies hire more temporary workers to deal with economic, staffing, and business challenges, more employers are at risk for noncompliance with state and federal safety regulations regarding temporary workers. Although temporary contractor agencies in California are, in theory, responsible for the workers’ safety, your company as the host could be found responsible and held liable for work-related injuries and illnesses of temporary workers. 

During this webinar, you will learn:

  • Who is considered a “temporary employee” under the law;
  • To what extent you are responsible for temporary worker safety;
  • Which duties put temporary worker safety at greatest risk;
  • How California workplaces are affected by Fed/OSHA’s temporary workers’ initiative;
  • Strategies to comply with your Cal/OSHA requirements regarding temporary workers; and
  • Recommended practices for reducing risk and liability, and more!

Take this opportunity to learn how to keep your temporary workers safe on the job and reduce your risk of noncompliance and costly Cal/OSHA or Fed/OSHA citations.

Click here to learn more and to register.