Occupational Health & Safety (OSHA)

Our colleague Steven M. Swirsky, a Member of the Firm at Epstein Becker Green, has a post on the Management Memo blog that will be of interest to many of our readers in the health care industry: “OSHA Withdraws ‘Fairfax Memo’ – Union Representatives May No Longer Participate in Work Place Safety Walkarounds at Non-Union Facilities.”

Following is an excerpt:

On April 25, 2017, Dorothy Dougherty, Deputy Assistant Secretary of the Occupational Safety and Health Administration (“OSHA”) and Thomas Galassi, Director of OSHA’s Directorate of Enforcement Programs, issued a Memorandum to the agency’s Regional Administrators notifying them of the withdrawal of its previous guidance, commonly referred to as the Fairfax Memorandum, permitting “workers at a worksite without a collective bargaining agreement” to designate “a person affiliated with a union or community organization to act on their behalf as a walkaround representative” during an OSHA workplace investigation. …

Read the full post here.

Featured on Employment Law This Week: The Occupational Safety and Health Administration (OSHA) has issued a final rule for handling retaliation under the Affordable Care Act (ACA).

The ACA prohibits employers from retaliating against employees for receiving Marketplace financial assistance when purchasing health insurance through an Exchange. The ACA also protects employees from retaliation for raising concerns regarding conduct that they believe violates the consumer protections and health insurance reforms in the ACA. OSHA’s new final rule establishes procedures and timelines for handling these complaints.  The ACA’s whistleblower provision provides for a private right of action in a U.S. district court if agencies like OSHA do not issue a final decision within certain time limits.

Watch the segment below:

Denise Dadika
Denise Dadika

In a matter highlighting the importance of workplace violence prevention programs, Epic Health Services, a national home health care provider, was recently issued a citation and fine by the Occupational Safety and Health Administration (“OSHA”) for failing to protect its employees from the dangers of workplace violence. The fine and citation stemmed from a complaint by one of Epic’s nurses, who alleged she was sexually assaulted by a client while providing services in the client’s home.

After an investigation, OSHA determined that the nurse was subjected to physical and sexual assault. The investigation also revealed that Epic had received numerous reports of verbal, physical and sexual assaults on employees, as well as a report of an employee forced to work in a house in which to domestic violence occurred.  In addition, OSHA concluded that the employer had no system for reporting threats or incidents of violence in the workplace.  For these reasons, OSHA cited the employer for one willful violation for failing to maintain a safe workplace under OSHA’s General Duty Clause.  A willful violation is defined by OSHA as a violation in which the employer either knowingly failed to comply with the legal requirement, purposefully disregarded the requirement or acted with indifference to employee safety.  OSHA also cited the employer for a records violation.  The citations amounted to a $98,000 fine.

OSHA’s findings highlight the importance of a workplace violence prevention program, particularly for home health care workers who are more vulnerable to workplace violence given their uncontrolled work environment. An effective workplace violence prevention program includes:  a well-disseminated policy addressing the prevention of workplace violence; an employee training program; a system for reporting all incidents of workplace violence; management commitment and employee involvement; worksite analysis and hazard identification; corrective action to address any hazards identified; and recordkeeping and program evaluation.  As we have reported in the past, OSHA has continued to stress the need for such programs, particularly in the health care industry.

The District of Columbia Office of Human Rights recently partnered with the National LGBTQ Task Force to publish a resource guide, “Valuing Transgender Applicants & Employees: A Best Practices Guide for Employers” (the “Guide”), designed to support employers in creating workplace and hiring policies that prevent discrimination against transgender and gender-nonconforming individuals. The guide is meant to lay the framework for building a culture of inclusion in the workplace that goes beyond legal obligations.

The suggested best practices include ensuring managers and coworkers use the names and pronouns preferred by transgender employees, maintaining the confidentiality of employees’ gender identity, implementing gender-neutral dress codes, providing access to restroom facilities corresponding to employees’ gender identity, and building an environment in which harassment or off-color comments are not tolerated.

The Guide emphasizes communication between employers and their transgender or gender-nonconforming employees and applicants so that the employer may understand what transgender employees believe a safe and inclusive workplace should look like and respond accordingly.  Recognizing that each individual has different needs, employers are encouraged to work with transitioning employees to develop a plan for them to transition in the workplace.  That said, transgender employees are not expected to shoulder the responsibility of educating coworkers or of ensuring their comfort.  Particularly because DC law prohibits discrimination based on gender identity or expression, employers should establish clear rules requiring professional demeanor, prohibiting transphobic and other harassing behavior, and prompting quick responses to any violations.

Following DC regulations, the Guide also instructs employers to provide access to restrooms and other gender-specific facilities consistent with employees’ gender identity or expression. Consistent with guidance from the EEOC and OSHA, transgender employees should never be required to use a separate gender-neutral facility – even if a cisgender employee expresses discomfort about sharing a gendered facility with a transgendered coworker.  In that case, the cisgender employee should be offered the use of a separate facility.

While the Guide has particular applicability for employers that operate in the District of Columbia, all employers should take note, as the recommended best practices are consistent with the way federal agencies are interpreting and enforcing federal law.

Valerie N. Butera
Valerie N. Butera

The Occupational Safety and Health Administration (“OSHA”) recognizes that the health care industry is among the most dangerous in the United States (see related story).  Health care employees are more likely to be exposed to various infectious respiratory illnesses spread through airborne and droplet routes, such as tuberculosis, influenza, and pandemics.  Employees who work in or near areas where there are patients suspected of having a disease that can be spread by airborne transmission should be using proper respiratory protection to minimize exposure of airborne diseases.

In March 2016, the National Institute for Occupational Safety and Health (“NIOSH”) published the results of a multi-year surveillance study examining the efficacy of respirator use in health care facilities where airborne transmission of diseases is likely.  The findings of the study are alarming – evidence collected during the study indicated gaps in hospitals’ respiratory protection policies and wide-spread failure by health care employees to use respirators correctly, even in hospitals with effective respiratory protection programs.  More specifically, the NIOSH study revealed that many employees were confused about when to use a respirator and how to properly use one and opted to simply use a surgical mask for protection instead.  But respirators and surgical masks are designed to protect against very different hazards.  Whereas a surgical mask protects patients from an employee’s respiratory secretions and protects employees against large-droplet splashes or spray of bodily fluids from patients, a respirator is designed to protect employees by providing a tight seal against the skin and filtering out a wide size range of airborne particles.

The study also found that a number of employees wore ill-fitting respirators.  To be effective, the wearer of a respirator must wear one that minimizes air leakage into the facepiece.  OSHA regulations require respirator fit testing before an employee is permitted to wear a respirator.  Because the fit of a respirator depends on a number of different factors, such as face shape, employers should provide a variety of models and sizes to try during the fit testing process.  Fit testing must be repeated annually, when a different respirator must be used, and where there has been a change in the employee’s facial structure such as extreme weight loss or dental work.

Finally, about 50% of the hospitals studied were deemed to have ineffective respiratory protection programs.  But even where good programs were in place, many employees used improper practices, including improper strap placement, failing to perform a user seal check, and improper donning and doffing of the respirator.

So how can health care employers correct this issue before tuberculosis or the next pandemic hits?  Employers should ensure that:

  • their current respiratory protection policy is compliant with OSHA regulations, CDC guidance, and any additional public health requirements in their jurisdiction;
  • all employees working in areas where they may exposed to airborne illnesses have been timely fit-tested for a respirator and understand how and when to use it;
  • training on respirator use, fit, and how to properly don and doff the respirator has been provided and periodic refresher training scheduled;
  • employees check their respirators regularly and know to immediately report to management should the respirator begin to deteriorate, fail to function properly, or no longer fit well; and
  • employees receive new fit tests and respirators as needed.

These simple steps will help ensure the health and safety of employees and patients when the next airborne infectious disease infects your hospital.

Our colleague Valerie Butera recently authored Epstein Becker Green’s March issue of Take 5 in which she outlines actionable steps that employers can take to improve safety in the workplaceand avoid costly OSHA citations.

Following is an excerpt:Take 5 banner

The Occupational Safety and Health Administration (“OSHA”) was created by Congress to ensure safe and healthful working conditions for employees. OSHA establishes standards and provides training and compliance assistance. It also enforces its standards with investigations and citations.

Although it’s impossible for employers to mitigate against every conceivable hazard in the workplace, there are five critical steps that every employer should take to improve safety in the workplace—and avoid costly OSHA citations. Read on for the steps:

  1. Conduct an Internal Safety and Health Audit Under Attorney-Client Privilege
  2. Create a Strong Safety Culture
  3. Ensure That Safety and Health Documentation Is Current and Well Communicated
  4. Train Employees in Safety and Health, Regularly and Comprehensively
  5. Protect Contractors and Temporary Workers, Too

Click here to read the full Take 5 online.

By Frank C. Morris, Jr.

The Ebola virus disease (“Ebola”) has become a worldwide threat, which, among many other effects, has forced employers to think about how to protect their employees. Employers also must consider how Ebola might impact employment policies and procedures, including, but not limited to, those addressing attendance, leaves of absence, discipline, and medical testing.

My colleagues and I have written a detailed Act Now advisory providing legal framework of best practices and legal risks pertaining to Ebola.

Click here to read the advisory in its entirety.

WHEN: November 17, 2014

TIME:    2:00pm – 3:30pm EST

To register for this webinar, please click here.

Please join us for a complimentary webinar addressing the professional and business challenges encountered by health care providers dealing with Ebola and other infectious diseases. This webinar will offer a clinical overview as well as a review of the guidelines which offer protocols for addressing concerns over Ebola and similar diseases, the health regulatory and risk management issues providers might consider in developing a response strategy, and the resulting labor and employment considerations facing health care employers. A question and answer period will follow the program.

Topics will include:

  • Clinical Overview and Emergency Management Issues
  • Health Regulatory Considerations for Providers
  • Risk Management Concerns
  • Employment Issues Confronting the Health Care Industry

Speakers:

  • Bruno Petinaux, M.D. – Associate Professor, Co-Chief of the Emergency Management Section, Department of Emergency Medicine, George Washington University Medical Faculty Associates
  • George B. Breen – Member, Epstein Becker Green, Chair, Health Care and Life Sciences Practice Steering Committee
  • Frank C. Morris, Jr. – Member, Epstein Becker Green, Employment, Labor and Workforce Management Practice
  • Amy F. Lerman – Associate, Epstein Becker Green, Health Care and Life Sciences Practice

To register for this webinar, please click here.

If you have questions regarding this event, please contact Whitney Krebs at (202) 861-0900, or wkrebs@ebglaw.com.

On Epstein Becker Green’s OSHA Law Update blog, Eric Conn reviews the agreement between the NLRB and OSHA, which allows employees to file out-of-date safety related whistleblower claims to be filed with the NLRB.

Following is an excerpt from the blog post:

On May 21, 2014, the National Labor Relations Board (NLRB) published a memorandum discussing a new agreement between NLRB and OSHA regarding a backdoor route for employees to file safety related whistleblower claims that are too stale to be filed with OSHA. The NLRB memo directs OSHA representatives to “notify all complainants who file an untimely [OSHA] whistleblower charge of their right to file a charge with the NLRB.” As a result of this agreement, employers should expect an increase in the number of unfair labor practice claims filed by employees alleging retaliation for protected safety related whistleblower activity.

To access the full blog post, please click here.

 

On Epstein Becker Green’s OSHA Law Update blog, Eric Conn reviews an article about OSHA’s web-based “Worker Safety in Hospitals” guidance.  The article is entitled “Hospitals’ Heavy Lifting: Understanding OSHA’s New Hospital Worker and Patient Safety Guidance” and is co-authored by our colleagues Eric Conn, James Frank, and Serra Schlanger.

Following is an excerpt from the blog post:

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.

To access the full blog post, please click here.