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

By Elizabeth Bradley, Kara M. Maciel & Adam Solander

In breaking news, the Obama Administration has acknowledged the significant regulatory burdens that the Affordable Care Act’s January 1, 2014 deadline would place on employers.  Specifically, the Administration announced that in view of the complexity of the rules and reporting requirements, it is  postponing for one year, until at least 2015, the requirement that businesses cover their workers under Obamacare (i.e., there will be no penalties the first year on businesses that do not cover workers).  The move does not affect the individual mandate  and it does not affect the establishment of the Exchanges.
The Treasury Department, which enforces the law, said in its own blog post:
“The Administration is announcing that it will provide an additional year before the ACA (Affordable Care Act) mandatory employer and insurer reporting requirements begin.  This is designed to meet two goals.  First, it will allow us to consider ways to simplify the new reporting requirements consistent with the law.  Second, it will provide time to adapt health coverage and reporting systems while employers are moving toward making health coverage affordable and accessible for their employees.”
We understand that regulatory guidance will be forthcoming this week, and we will provide updates as soon as information becomes available. Stay tuned to EBG’s blogs and www.ebglaw.com for more breaking news about the ACA.

By Eric J. Conn, Head of the OSHA Group at Epstein Becker & Green

Introduction

OSHA recently issued a White Paper analyzing the first 18 months of its controversial enforcement initiative known as the Severe Violator Enforcement Program (“SVEP”).  Despite mounting evidence to the contrary, the White Paper somehow concludes that the SVEP is “off to a strong start,” and that it “is already meeting certain key goals,” including:

  1. Successfully identifying recalcitrant employers who disregard their OSH Act obligations; and
  2. Effectively allocating OSHA’s follow-up enforcement resources “by targeting high-emphasis hazards, facilitating inspections across multiple worksites of employers found to be recalcitrant, and by providing Regional and State Plan offices with a nationwide referral procedure.”

A candid review of the publicly available SVEP data, however, exposes SVEP’s underbelly, and casts doubt on the Program’s effectiveness.  Most notably, SVEP:

  1. Disproportionately targets small employers;
  2. Provokes 8x as many challenges to the underlying citations as compared to the average OSHA enforcement action;
  3. Encounters significant obstacles in executing follow-up inspections of SVEP-designated employers; and
  4. Finds virtually no systemic safety issues when follow-up and related facility inspections are conducted.

 

SVEP Background

We have written quite a bit about the SVEP previously on the OSHA Law Update Blog, but here is some background about what it is, who is being targeted, and what the consequences are.  On June 18, 2010, OSHA instituted SVEP to focus its enforcement resources on recalcitrant employers, whom OSHA believes demonstrate indifference to their employees’ health and safety.  SVEP replaced the much-maligned Enhanced Enforcement Program (“EEP”), a George W. Bush era enforcement program also intended to target wayward employers.  The EEP was criticized as ineffective and inefficient because its broad qualifying criteria created so many cases that OSHA struggled to conduct follow-up inspections.  OSHA, therefore, scrapped the EEP and instituted SVEP with narrower qualifying criteria and a better infrastructure for pursuing follow-up inspections.

Employers qualify for SVEP if they meet one of the following criteria:

  1. Any alleged violation categorized by OSHA as “Egregious”;
  2. 1+ Willful, Repeat or Failure-to-Abate alleged violations associated with a fatality or the overnight hospitalization of three or more employees;
  3. 2+ Willful, Repeat or Failure-to-Abate alleged violations in connection with a high emphasis hazard (e.g., falls, amputations, grain handling, and other hazards that are the subject of an OSHA National Emphasis Program); or
  4. 3+ Willful, Repeat or Failure-to-Abate alleged violations related to Process Safety Management (i.e., avoiding the release of a highly hazardous chemical). Continue Reading OSHA Claims Its Severe Violator Enforcement Program is “Off to a Strong Start”

By Greta Ravitsky

The Labor and Employment practice at Epstein Becker Green publishes a regular newsletter called “Take 5: Views You Can Use,” which addresses 5 L&E topics around a related subject.  The January 2013 edition of Take 5 includes some important workplace health issues associated with implementation of the Affordable Care Act (ACA), so we are providing a link to it here on the OSHA Law Update Blog.

In this month’s Take 5 newsletter, one of EBG’s Houston office Labor and Employment Partners, Greta Ravitsky, summarizes five important actions for employers to consider, as the Department of Labor steps up its audit efforts in connection with the Affordable Care Act implementing regulations, including:

  1. Assessing the Workforce
  2. Choosing Whether to “Pay” or to “Play”
  3. Evaluating Existing Wellness Programs and/or Implement New Wellness Programs to Enhance Employees’ Health Profiles and to Avoid or Minimize the “Cadillac Tax”
  4. Understanding and Being Ready to Comply with New Tax-Related Changes and Requirements
  5. Conducting Self-Audits to Ensure Compliance

 

Here is an excerpt from the newsletter:

With the U.S. presidential election behind us, it is clear that the Patient Protection and Affordable Care Act (“Affordable Care Act”) is likely here to stay, having survived a U.S. Supreme Court case challenge last June. While affected employers can avoid facing penalties until 2014 for not making health care coverage available to their workforce, the U.S. Department of Labor (“DOL”) has begun auditing employers’ group health plans for compliance with other requirements of the law that are already in effect. As the DOL steps up its audit efforts under the leadership of the reenergized Obama administration, below are five actions that employers should consider taking in 2013.

Read the full version on EBGlaw.com.

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. Continue Reading Employer-Sponsored Wellness Program Held Lawful Under the ADA

By Eric J. Conn

In what seems to be a trend, OSHA has again delayed its rulemaking process for an Injury and Illness Prevention Program (commonly known as I2P2) standard. The announcement came during a National Advisory Committee on Occupational Safety and Health meeting in late June.  According to OSHA officials, we should not expect the next rulemaking phase, a small business review process, to begin until at least Labor Day.  I2P2 programs, which aim to reduce workplace injuries by requiring employers to proactively find and fix workplace hazards, have been on OSHA’s regulatory radar for quite some time.

Agency hold-ups, however, and more recently, election-year politics, have left the rulemaking process at a standstill.  The timeline below illustrates OSHA’s “progress” to date on the I2P2 Rule:

To justify the Agency’s most recent delay, an OSHA official explained that OSHA is still ironing out the proposal it plans to present to the SBREFA panel. OSHA stressed that it wants to deliver a “complete” proposal, including a range of alternatives that the Agency is considering.  Excuses aside, OSHA’s inability to get past this early step in the rulemaking process signals a long and difficult road ahead for the I2P2 rule.  After OSHA convenes the SBREFA panel, it still has to publish its proposed rule and solicit stakeholder comments before releasing a final rule.  Based on the time-consuming nature of this process and the delays we have already seen from OSHA, we probably will not see substantial movement on the rule until 2013.  Still, it is never too early for employers to start preparing.

While OSHA’s rule will likely allow for some degree of program flexibility, we expect that it will require employers’ I2P2 programs to include the following core components:

  • Management leadership;
  • Employee participation;
  • Hazard identification, prevention, and control;
  • Education and training; and
  • Program evaluation.

Further, an I2P2 rule will likely draw from current voluntary consensus standards for I2P2 programs, such as the ANSI/AIHA Z10 and the OSHAS 18001 standards, as well as state I2P2 laws and regulations (34 states currently incentivize or require employers to implement I2P2 programs through legislation or regulation).

No matter the Rule’s ultimate requirements, employer compliance will be crucial.  The I2P2 rule has the potential to become one of the most frequently used weapons in OSHA’s enforcement arsenal.  For example, if a workplace injury occurs, OSHA may not only cite the employer under applicable hazard-specific standard, it will likely also tack on an I2P2 violation. Alternatively, if a workplace injury occurs, but there is no hazard-specific standard for OSHA to cite, OSHA will rely on the I2P2 rule to impose fines against employers.  In either case, OSHA’s reasoning would be that the injury never would have happened if the employer had an adequate I2P2 program in place.

This type of enforcement pattern is already playing out at the state plan level.  Consider California for example, where employers have been subject to a state I2P2 standard since 1991.  Twenty-one years later, California’s I2P2 standard is the most frequently cited standard.  The bottom line is that although OSHA may not issue a final I2P2 rule until sometime in 2013, or later, employers should consider the potential far-reaching implications of the rule for safety, their budgets, and their reputations.

 

Bonnie I. Scott, a Summer Associate (not admitted to the practice of law) in Epstein Becker Green’s Washington, DC, office, contributed significantly to the preparation of this post.

This week, Washington Legal Foundation published an article  regarding OSHA’s New Enterprise-Wide Approach to Enforcement, authored by EBG attorneys Eric J. Conn and Alexis M. Downs.  The article expands on a February 2012 post entitled “Enterprise Enforcement: OSHA’s Attack on Employers with Multiple Locations,” here on the OSHA Law Update Blog.

The gist of the article and the prior blog post is that companies that operate multiple facilities in different locations, such as national retail and grocery chains, grain cooperatives, large national nursing and medical care organizations, manufacturers, hotel groups, and many others, need to be aware of four new Occupational Safety and Health Administration (OSHA) enforcement trends that have important corporate-wide consequences:

  1. A rise in follow-up inspections and Repeat violations at sister facilities within a corporate family;
  2. OSHA’s pursuit of company-wide abatement provisions in settlement agreements;
  3. OSHA’s requests for enterprise-wide relief from the Occupational Safety and Health Review Commission; and
  4. Implementation of OSHA’s Severe Violator Enforcement Program (SVEP), which incorporates elements of each of the above.

The full article explains these four initiatives and how OSHA is implementing them.

Last week, EHS Today Magazine ran our article in which we delve into more detail about OSHA’s amended Hazard Communication Rule (“HazCom”), and the integration of the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (“GHS”).  Check out the full article here, in which we detailed 10 important things employers need to know about the final HazCom Rule.  Here’s the short list:

  1. New Hazard Classification Criteria
  2. New Method for Evaluating Mixtures
  3. Amended Label Requirements
  4. Proscrictive Format for Safety Data Sheet
  5. Inclusion of Non-Mandatory Threshold Limit Values in SDSs
  6. Information and Training Requirements
  7. Other Effective Dates
  8. Inclusion of a Category of Hazards Not Otherwise Classified
  9. No Preemption of State Tort Laws
  10. Covers Combustible Dust Without Clarity

The article expands on our post here last month with a brief summary of the new HazCom rule.