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. . . .
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The national OSHA Practice Group at Epstein Becker Green co-authored an article in BioFuels Journal entitled “Railcar Fall Protection: What OSHA Requires from Ethanol Plant Operators.”  Although the article principally addresses OSHA’s enforcement landscape related to work on top of railcars at ethanol plants, the analysis carries over to work on top of

By Alka N. Ramchandani and Michael D. Thompson

In recent years, Cal-OSHA has taken an aggressive stance against exposing employees to potential heat illness, often citing employers and proposing significant penalties for failing to provide to employees who work in high heat conditions with adequate drinking water, shade, training, and/or cool-down periods.  Furthermore, as noted by the California Supreme Court in Brinker v. Superior Court, monetary remedies for the denial of meal and rest breaks “engendered a wave of wage and hour class action litigation” when added to the California Labor Code more than a decade ago.

The California Legislature has brought these two trends together by  amending California Labor Code Section 226.7 to include penalties for employers’ failing to provide “Cool Down Recovery Periods” (“CDRPs”) to prevent heat exhaustion or stroke.  The requirement to provide CDRPs kicks in January 1, 2014, after which California employers will be required to pay a wage premium for failing to provide CDRPs to employees.  This premium pay is akin to the premium pay already required for violations of California’s meal period and rest break laws.  The amendment is sure to trigger substantial litigation in California, and cross over into Cal/OSHA enforcement as well.

California’s Heat Illness Prevention Statute

California employers have long been aware of California’s Heat Illness Prevention statute, Title 8 Section 3395(d), which obligates employers to provide training and access to shade and adequate drinking water for employees who work outdoors in high heat conditions.  Pursuant to the Heat Illness statute, employers have also been required to maintain one or more shaded areas, with either open-air ventilation, forced ventilation, or forced cooling, and employers are required to allow employee access and encourage employees to access these shaded or cooled areas for cool down periods of no less than five minutes or as employees feel the need to do so.  Historical Cal-OSHA Board decisions and Standard Board committee notes have refused to characterize these cool down periods as work-free breaks; i.e., employers may require employees to continue working during periods when they are in shade or air conditioned locations.

Although heat illness has been an enforcement focus across the country, Cal-OSHA is the only OSHA scheme that has its own Heat Illness specific standard.  While federal OSHA has increased its use of the General Duty Clause to cite heat illness issues, Cal-OSHA has led the way in this enforcement space.

California Labor Code Section 226.7

Pursuant to California Labor Code section 226.7, employers are already required to pay a penalty of one hour of pay for any failure to provide a non-exempt employee with a meal period and an additional hour of pay for any failure to provide a non-exempt employee with a rest break.  This law has produced numerous class action lawsuits throughout California.  Under the recent CDRP amendment, any failure to provide a cool down recovery period will obligate the employer to pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that a recovery period is not provided.  Employers now face more than just serious citations under Section 3395(d), but also cited or sued by employees (or classes of employees) for failure to provide CDRPs pursuant to California Labor Code Section 226.7.

Pursuant to this statute, California employers have suffered through a barrage of wage and hour single plaintiff and class action lawsuits related to California’s meal and rest break requirements under Section 226.7.  This recent history has shown that compliance with these work-free periods is difficult, and demonstrating compliance is even more so.  More importantly, the potential penalties and civil judgments are extremely high.

The Amended Statute

On October 10, 2013, that changed.  The California Legislature joined Cal-OSHA’s cause and signed a new bill into effect amending California Labor Code Section 226.7 to include penalties for failure to provide CDRPs.  Section 226.7 provides in pertinent part:

If an employer fails to provide an employee a meal or rest or recovery period in accordance with a state law, including, but not limited to, an applicable statute or applicable regulation, standard, or order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal or rest or recovery period is not provided.
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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. 
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By Frank C. Morris, Jr. and Jordan B. Schwartz

An employer’s wellness program—despite certain “penalty” provisions—was recently held not to be discriminatory under the Americans with Disabilities Act (“ADA”) by the U.S. Court of Appeals for the Eleventh Circuit in Seff v. Broward County.  The Eleventh Circuit found the wellness program, sponsored by Broward County, Florida (“County”), was established as a term of the County’s insured group health plan and, as such, fell under the ADA’s bona fide benefit plan “safe harbor” provision.  This ruling is welcome news for employers with or considering wellness programs.

However, if the County’s wellness program had not been found to be a part of the County’s health benefits plan, then potential plaintiffs or the Equal Employment Opportunity Commission (“EEOC”) would likely have argued that the wellness program runs afoul of the EEOC’s views on “voluntariness” requirements for employer-sponsored wellness programs.

The ADA’s Impact on Wellness Programs

Wellness initiatives seek to boost employee productivity and reduce both direct and indirect medical costs, which are desirable outcomes for employers.  Employer-sponsored wellness programs have grown exponentially over the past decade, as employers have increased their focus on controlling health care costs and improving the overall safety and health of employees.  According to recent studies, approximately 46% of participating employers had implemented wellness programs.  Despite the growing popularity and positive aspects of wellness programs, legal uncertainties surrounding these programs—including restrictions imposed by the ADA, the Genetic Information Nondiscrimination Act (“GINA”), and the Health Insurance Portability and Accountability Act (“HIPAA”)—have presented obstacles to their implementation and growth.

Certain ADA restrictions have contributed to many employers declining to start wellness programs. Specifically, the ADA prohibits employers from making disability-related inquiries or requiring medical examinations of prospective or current employees unless they are job-related or subject to a business necessity exception. On the other hand, voluntary medical exams are permitted so long as the information obtained is kept confidential and not used to discriminate. There is little guidance, however, either from the courts or the EEOC, analyzing whether an employer-sponsored wellness program that encourages participation by providing incentives, or penalizes non-participation, can be considered “voluntary” and therefore permissible under the ADA.

The ADA has certain safe harbors for insurers and bona fide benefit plans that exempt such programs from ADA restrictions. Under these safe harbors, employers, insurers, and plan administrators are permitted to establish a health insurance plan that is “bona fide” based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with state law. Thus, if a wellness program qualifies for the ADA’s safe harbor provision, an employer need not worry whether such program otherwise would have been considered voluntary. Notably, the EEOC has not addressed wellness programs and the ADA’s safe harbor provision.

Seff v. Broward County

In October 2009, the County adopted a wellness program for its employees as part of its health plan open enrollment. The wellness program consisted of three parts: (1) a biometric screening consisting of a “finger stick” to measure glucose and cholesterol; (2) disease management for five specified conditions; and (3) an online Health Risk Assessment (“HRA”). Participation in the program was not required as a condition of participation in the County’s health plan, but employees who did not undergo the screening or complete the HRA incurred a $20 bi-weekly charge subtracted from their paychecks.

In response to this program, current and former County employees who enrolled in the County’s health insurance plan and incurred the $20 bi-weekly fee filed a class action lawsuit in the U.S. District Court for the Southern District of Florida. They alleged that the wellness program’s biometric screening and online HRA violated the ADA’s prohibition on non-voluntary medical examinations and disability-related inquiries. The County argued that its wellness program was part of its health plan and, as such, fell under the ADA’s safe harbor provision.

The primary question addressed by the district court was whether the wellness program was a “term” of a bona fide benefit plan, which would allow it to come within the ADA’s safe harbor provision for such plans. In granting summary judgment to the County, the district court determined that the program was indeed a “term” of the County’s group health plan based on the following three factors:

  1. The health insurer offered the wellness program as part of its contract to provide insurance, and paid for and administered the program;
  2. The wellness program was available only to plan enrollees; and
  3. The county presented a description of the wellness program in at least two employee benefit plan handouts.
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By Eric J. Conn

In August of 2010, a Delta Air Lines (“Delta”) baggage handler was fatally injured in a workplace accident, when the employee was ejected from a baggage tug vehicle while not wearing a seat belt.  As a result of this incident, Delta was cited by OSHA in February 2011 for alleged violations of regulations under the Occupational Safety and Health Act, including specifically, 1910.132—relating to personal protective equipment.

Corporate-Wide Settlement

To resolve the citations, Delta entered into a settlement agreement with OSHA on April 17, 2012 that required Delta to pay a modest penalty, $8,500, but also committed Delta to install seat belts on similar industrial vehicles operated at 90 of Delta’s locations nationwide over the next year.  Delta also committed to provide seatbelt training and to mandate the use of seatbelts for 16,000 of its employees.  Delta also agreed to waive its right to demand inspection warrants, and permit OSHA to monitor this issue. Finally, the agreement stipulates that general monitoring of implementation of this corporate-wide abatement will be conducted by a third party, not OSHA.

The Delta agreement was one of the first Corporate-Wide Settlement Agreement (“CSA”) reached under OSHA’s latest June 2011 Guidelines for Administering Corporate-Wide Settlement Agreements.  Under these guidelines OSHA expanded its use of the CSA to a broader range of enforcement cases, including high profile fatality cases.  This type is settlement has special implications for the airline industry, in which employers inherently operate at dozens or even hundreds of sites—magnifying both the potential penalties and compliance costs.  See our previous posts about the risks of enterprise enforcement.

Settlement in Context

Delta is a participant in OSHA’s Voluntary Protection Program (“VPP”).  On its website OSHA states “VPP corporate applicants must have established, standardized corporate-level safety and health management systems, effectively implemented organization-wide as well as internal audit/screening processes that evaluate their facilities for safety and health performance.”  Despite Delta being an active partner with OSHA over the last decade, the settlement agreement appears to be favorable to the Agency.  On the other hand, Delta avoided inclusion in OSHA’s Severe Violator Enforcement Program (“SVEP”), which can be an option when there is a fatality and OSHA finds “one or more willful or repeated violations.”  If SVEP qualification was on the table in these negotiations, it would certainly have given OSHA substantial leverage.
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By Paul H. Burmeister

The OSHA/Hyatt Hotels saga continued with a recent exchange of letters between OSHA and the hotel chain’s attorney.  In April, OSHA issued a “5(a)(1) letter” to the CEO of Hyatt Hotels, indicating that OSHA believed there were ergonomic risks associated with the daily work activities of the company’s housekeeping staff.

by Margaret C. Thering and Lauri F. Rasnick

Violence against women has been in the headlines lately – the reauthorization of the Violence Against Women Act is engendering vigorous debate, and as of last month, federal agencies were ordered to implement policies to assist their employees who are victims of domestic violence.  Also last month,

By Amanda R. Strainis-Walker and Eric J. Conn

With the dog days of summer around the corner, OSHA just put out a press release reminding employers with outside workplaces about OSHA’s focus on the hazards of working in high heat.  The press release reinvigorates OSHA’s heat-related illness campaign that began leading into last summer, when

By Kara M. Maciel

Sadly, workplace violence continues to be a topic that challenges many organizations.  Indeed, as the news reports continue to remind us, employees and non-employees often take out their aggression and violent acts within the workplace.  As the recent attacks at hospitals in Pittsburgh and in Washington, D.C. demonstrate, there remains a