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
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:
- More Whistleblower Complaints;
- Heavier enforcement by OSHA;
- Increased enforcement by the Joint Commission; and
- 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:
- Reviewing and digesting the new OSHA hospital patient and employee safety resource;
- Work with employees and/or contractors to improve Safe Patient Handling Programs and/or a Safety and Health Management Systems; and
- 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. . . .…
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. …
By Eric J. Conn, Head of the OSHA Group at Epstein Becker & Green
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:
- Successfully identifying recalcitrant employers who disregard their OSH Act obligations; and
- 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:
- Disproportionately targets small employers;
- Provokes 8x as many challenges to the underlying citations as compared to the average OSHA enforcement action;
- Encounters significant obstacles in executing follow-up inspections of SVEP-designated employers; and
- Finds virtually no systemic safety issues when follow-up and related facility inspections are conducted.
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:
- Any alleged violation categorized by OSHA as “Egregious”;
- 1+ Willful, Repeat or Failure-to-Abate alleged violations associated with a fatality or the overnight hospitalization of three or more employees;
- 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
- 3+ Willful, Repeat or Failure-to-Abate alleged violations related to Process Safety Management (i.e., avoiding the release of a highly hazardous chemical).…
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…
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:
- The health insurer offered the wellness program as part of its contract to provide insurance, and paid for and administered the program;
- The wellness program was available only to plan enrollees; and
- The county presented a description of the wellness program in at least two employee benefit plan handouts.…
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…
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…
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…