Injury & Illness Prevention Program

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

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 Epstein Becker & Green’s OSHA Practice Group

OSHA during the first term of the Obama Administration featured a heavy focus on enforcement, at the expense of compliance assistance, and despite a lot of talk, also at the expense of any meaningful new rulemaking activities.  There are signs now, however, that OSHA may be renewing a push for a more active rulemaking calendar during the Administration’s second term.

The first sign has been a series of speeches and public statements by OSHA’s Administrator, Dr. David Michaels, in which he has characterized the development of a proposed Injury and Illness Prevention Program (I2P2) rule as his and the Agency’s “highest priority.”  The I2P2 rule is being designed to compel employers to “find and fix” hazards, and would have significant implications for employers across all industries.  During a presentation at a safety conference in June, Michaels explained that “I2P2 would require employers to have an ongoing, investigative, preventative process in place instead of being reactive and addressing problems after an accident occurs.”  OSHA’s leadership characterizing the I2P2 rule is a top priority is not new, but now that we are passed the 2012 Presidential Election, actual movement on the proposed rule is realistic.

Second, we are hearing that the Department of Labor’s Spring Regulatory Agenda is expected to return several OSHA rulemaking initiatives, including the I2P2 rule, from the backburner, where they were deposited prior to the 2012 Presidential Election, back to the active rulemaking calendar.  For the moment, we are left only to guess about that active rulemaking calendar because the Department of Labor is once again significantly overdue, already by two months, publishing the Regulatory Agenda.  Congressional Republicans have criticized the Agency’s lack of transparency resulting from the delay, claiming the Administration is playing a game of regulatory hide-and-seek.

Finally, although OSHA has not made an official announcement yet, sources report that OSHA will soon promote Dorothy Dougherty, current Director of OSHA’s Directorate of Standards and Guidance, as its new Deputy Assistant Secretary, the most senior career position within OSHA.  Ms. Dougherty will replace former Deputy Assistant Secretary Richard Fairfax, who retired in early May of 2013.  This move is significant because, as her most recent title indicates, Ms. Dougherty’s long career at OSHA has included a heavy focus on the development of workplace standards, regulations, and guidance, and therefore may be another sign that OSHA plans to prioritize rulemaking over the balance of the Obama Administration’s time in office.

Ms. Dougherty began her career with OSHA in 1992 as Chief of the Compliance and Technical Guidance Division (another non-enforcement role) for the Office of the Federal Agency Programs.  Since that time, Ms. Dougherty has assumed several other leadership positions within the Agency, many of which focused on rulemaking and compliance assistance.  She has served nearly seven years in her current position as Director for the Directorate of Standards and Guidance.  Ms. Dougherty is well-liked within the Agency and has received high praise from current and former peers for her managerial skills and ability to work collaboratively with others, including appointed officials from both sides of the aisle.
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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