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.

President Obama’s recent budget proposal to Congress includes a proposed $592.1 million budget for OSHA this fiscal year — a 7 percent increase from fiscal 2015.  Although gaining approval of the proposal will surely be an uphill battle, which may be insurmountable in light of opposition from Republican lawmakers who oversee the appropriations process, the content of OSHA’s budget justification provides strong signals of its agenda for the coming year.

First, OSHA seeks to add 90 full-time positions to the agency for fiscal 2016.  Sixty of the new positions would be assigned to enforcement activities – forty of the new enforcement employees would be assigned to inspect the anticipated 50,000 – 75,000 new injury and hospitalization reports the agency expects to receive in fiscal 2016 in response to new reporting requirements that took effect on January 1, 2015 (the new reporting regime requires employers to report to OSHA within 24 hours any work-related hospital admissions, amputations, or eye losses).  The other twenty enforcement employees would be assigned to high hazard, complex inspections, such as inspections of worksites where the Process Safety Management standard applies or musculoskeletal disorders may be at issue.  OSHA states that without this increase in manpower, it will be forced to eliminate many planned inspections of high hazard workplaces, shifting its inspection priorities to responding to injury and hospitalization reports.

Next OSHA urged Congress to increase the statutory civil penalties for workplace health and safety violations.  The OSH Act is one of only four statutes not covered by the Federal Civil Penalties Inflation Adjustment Act, which includes a mechanism to increase fixed penalties to keep pace with inflation.  Without the benefit of this mechanism, OSHA has only been able to increase its civil monetary penalties once in the last forty years.  Although OSHA was not explicit in its budget justification, it appears the agency seeks funding for its efforts to increase the monetary civil penalties that the agency can impose in its citations in an effort to increase their deterrent effect.

Even if OSHA receives none of the additional funding it seeks, employers should take note of the clear signals that OSHA has given employers of its intentions in its budget justification:

  • OSHA fully intends to respond to the thousands of injuries it expects will be reported in response to the new recordkeeping rule.  Employers must make certain that their safety and human resources professionals know when and how to appropriately report injuries to OSHA and should expect OSHA to act upon these reports.
  • OSHA is likely to impose greater penalties, even in the absence of an increase to the statutory penalties currently available to the agency.  OSHA inspectors do not consistently impose the maximum penalties available to them when issuing citations under the current penalty scheme.  Having clearly expressed its dissatisfaction with the deterrent effect of its penalties, OSHA will likely urge its compliance officers to impose the highest possible penalties when issuing citations going forward.
  • High hazard workplaces remain a top priority for OSHA.  The agency will, to the extent possible, continue to deploy its inspectors to businesses with high injury and illness rates, worksites subject to the Process Safety Management standard, and worksites presenting musculoskeletal issues.

OSHA has been very aggressive in its enforcement efforts and in seeking large penalties over the last several months.  The initiatives it has outlined in its budget justification signal that this will not change, and in fact, will become more intense in coming months.  Employers are well-advised to learn their rights and best practices for preparing for an OSHA Inspection.  Moreover, employers with worksites that present any of the high hazard risks outlined above should seriously consider engaging counsel to conduct an attorney-client privileged OSHA compliance audit.  The Occupational Safety and Health Review Commission has held that compliance audit reports created by third party experts are protected from disclosure to OSHA when they are conducted to aid counsel in providing compliance advice.  By conducting such an audit, employers can assess for themselves whether they should be concerned when OSHA comes knocking and if so, improve safety practices and equipment on their own initiative.  Such actions demonstrate an employer’s commitment to safety, while protecting against the ominous possibility of OSHA using its internal audit report as a guide to potential health and safety issues in the workplace.

Valerie Butera, Member of the Firm in the Labor and Employment practice, will present a complimentary webinar, hosted by Midwest Employers Casualty Company, on January 27 at 11:00 a.m. EST titled “OSHA Forecast: Developments to Watch in 2015 and Beyond.”

This webinar will delve into OSHA issues that will impact a wide range of industries in 2015. In addition to a greater focus on enforcements and inspections, changes will occur for recording injuries and illnesses in the OSHA 300 Injury and Illness Recordkeeping log as well as reporting changes of severe injuries or illnesses.

For more information and to register for this webinar, click here.

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.

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

Happy Holidays and Happy New Year to all of you, and Happy 1st Anniversary to the OSHA Law Update blog.  On December 20th, we celebrated our first full year of updates and articles (56 of them) about important OSHA Law topics here on the OSHA Law Update blog.  We would hardly have the energy or enthusiasm to keep the OSHA Law Update current if it were not for all of the incredibly positive feedback, comments, and questions that we have received over the year from all of you.  Thank you for that.

Just as we did last year, as the clock was winding down on a remarkable year of OSHA enforcement and other activity, it is time to take a look ahead to the new year, and offer our thoughts about what we can all expect from OSHA in 2013.  Here is a link to our post from December 2011 in which forecasted 5 important OSHA developments for 2012 (a pretty accurate forecast in retrospect), and here are three developments we expect from OSHA in 2013:

1.  Heavy-handed enforcement will continue to trend up:

During President Obama’s first term in office, OSHA consistently increased enforcement in every measureable way, year over year, and there is every reason to believe that trend will continue.  OSHA’s budget increased early in President Obama’s first team, and that allowed OSHA to hire more than 100 new compliance officers.  The agency also redirected most of the resources and personnel who had formerly been involved in compliance assistance and cooperative programs into enforcement.  As a result of this big increase in enforcement personnel, we saw the number of inspections increase from averages in the mid-30,000’s during the Bush Administration to the mid-40,000’s through President Obama’s first term.  Barring a prolonged trip over the Fiscal Cliff and actual implementation of sequestration, the trend of increasing enforcement personnel and increasing inspections will continue.

In addition to more frequent visits from OSHA, the OSHA leadership team also modified its Field Operations Manual for the purpose of driving up average and total penalties per inspection (i.e., by raising minimum penalties, average penalties, and eliminating penalty reductions available for size and safe history).  As a result, the average per Serious violation penalty doubled from the Bush Administration (approx. $1,000 per violation) to the end of Obama’s first term (approx. $2,000 per violation).  OSHA’s leadership team has expressed a goal of continuing to grow that average to approx. $3,000 per Serious violation.  We also watched the frequency of enhanced citations (i.e., Willful and Repeat violations that carry 10x higher penalties) increase at a rate of more than 200%.  Those changes, and other aggressive enforcement strategies by OSHA, have resulted in the Agency doubling the total number of “Significant” enforcement actions (cases involving penalties of $100,000 or more), and tripling the number of cases involving total penalties over $1M.  That trend is also expected to continue.

The Democratic Party unveiled its Party Platform during President Obama’s Nominating Convention, and offered a glimpse into what we can expect from OSHA in 2013 and beyond.

The platform called for a focus on “continu[ing] to adopt and enforce comprehensive safety standards.”  Many dubbed the 2012 a “status quo election,” which is probably right, and because the status quo at OSHA over the past four years has been a trend of increasing enforcement and focused rulemaking, that is precisely what we should expect from OSHA over the next four years.

Specifically, OSHA will continue to aggressively enforce its existing standards (i.e., increasing numbers of inspections, increasing penalties, and increasing publicity related to enforcement actions).  We anticipate a doubling down on programs and strategies like: