Featured on Employment Law This Week: OSHA plans to roll back a controversial reporting rule initiated at the end of the Obama administration.

OSHA has proposed rescinding parts of a 2017 rule that requires companies with 250 or more employees to submit detailed reports on workplace injuries. OSHA says this move would protect employee privacy and reduce the burden for employers. Three organizations have filed suit over the proposed changes, saying that the data from the detailed reports helps improve workplace safety procedures. .

Watch this week’s Employment Law This Week episode below.

On April 17, the Joint Commission—a nonprofit organization that provides accreditations to health care organizations—issued a list of seven steps hospitals should take to improve safety and reduce the risk of workplace violence perpetrated by employees, patients, and visitors. While the seven steps are advisory rather than mandatory, health care organizations risk jeopardizing their accreditation status if they fail to take appropriate action in response to episodes of workplace violence.

The Joint Commission’s alert seeks to address what it characterizes as the prevalence of workplace violence in the health care industry, citing a 2015 report from the federal Occupational Safety and Health Administration (OSHA) suggesting that approximately 75% of workplace assaults reported annually occur in health care and social service. The Joint Commission suggests that health care workplaces are particularly susceptible to workplace violence because of the daily care of patients dealing with mental health issues.

In the last few years, OSHA has taken action to address workplace violence in health care settings, including by overhauling its Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers, and by issuing citations to health care employers with allegedly inadequate workplace violence programs. Yet OSHA has not proposed an explicit regulation applicable to workplace violence in health care and instead has relied upon the General Duty Clause when issuing citations. And as our colleagues have reported, as of April 1, 2018, California is the only state that expressly requires all health care facilities to maintain a comprehensive plan to prevent workplace violence. The Joint Commission’s recent alert now adds additional incentives for health care organizations to implement and update workplace violence prevention programs.

So what can health care organizations do to protect the workers who put themselves in harm’s way each day? According to the Joint Commission, organizations should clearly define the term “workplace violence.” Staff members should recognize that workplace violence comprises a broad range of behaviors, from verbal assaults to physical violence with or without use of weapons. Staff should be able to easily report episodes of workplace violence, and organizations should track and follow up on any reported incidents, providing support and psychological counseling to victims, witnesses, and others affected.

Once organizations begin tracking incidents, they should review and analyze the data to identify common contributing factors and use those to develop intervention strategies. These strategies may include changes to the physical environment, such as altering exit routes, improving alarm systems, adding restricted access doors, and implementing more regular security patrols, or altering work practices or administrative procedures, reducing stressors like crowding and wait times, identified as risk factors for workplace violence. Organizations should train employees on how to use de-escalation tactics, and run practice drills such as active shooter response simulations. Finally, organizations should regularly review and assess the effectiveness of their responsive strategies to recognize areas of success and ensure continuous improvement.

While these measures are unlikely to completely eliminate workplace violence in health care settings, they represent a step in the right direction toward managing the risks, thus enabling our health care workforce to focus on the business of healing. Health care employers are well-advised to consult with counsel to develop and implement effective workplace violence prevention programs to improve employee safety and morale, reduce the likelihood of receiving an OSHA citation or jeopardizing accreditation, and – in the case of California employers – comply with the law.

With the passage of A.B. 30, California became the first state to require all acute-care hospitals and skilled-nursing facilities to develop and implement comprehensive workplace violence prevention plans. After years of wrangling with California’s Division of Occupational Safety and Health (“Cal OSHA”), the law became effective on April 1, 2018.

This statute was conceived by Cal OSHA, in conjunction with unions such as the California Nurses Association to address the high risk of workplace injuries faced by health care workers daily. Overall, health care workers suffer the greatest number of workplace injuries, with over 650,000 individuals injured each year. Violence in the health care industry, however, is historically underreported; one survey estimated that just 19% of all violent events are reported.

Under the law, affected employers in the health care industry must prepare a workplace violence prevention plan that includes:

  1. Annual personnel education and training regarding workplace violence;
  2. A system for responding to and investigating violent or potentially violent incidents; and
  3. Procedures for annual assessment and evaluation of factors that could help to prevent workplace violence.

Employers must provide annual education and training to all employees at their facility who administer direct patient care, including physicians and temporary employees. This training must include, but not be limited to, information regarding:

  • Identifying potentially harmful and violent situations and appropriate responses thereto;
  • Reporting violent incidents to law enforcement officials; and
  • Resources available to employees coping with the aftermath of a violent incident, such as critical incident stress debriefing and/or employee assistance programs.

Employers’ annual assessment identifying the factors that could possibly minimize the number of incidents of workplace violence should include a review of staffing and staffing patterns; the sufficiency of security systems at the facility; job design, equipment, and facilities; and areas of high security risk including entry and exit points for employees during late-night and early-morning shifts and employee parking lot safety.

Additionally, employers must develop these workplace prevention plans with input from their employees and any applicable collective bargaining agents. Employers are also expressly prohibited from taking punitive or retaliatory action against employees for reporting violent incidents.

Employers, however, should be aware of the dichotomy between interests regulated by Cal OSHA and by the Centers for Medicare and Medicaid Services (CMS). While Cal OSHA creates rules to ensure health care workers have a safe work environment free from harm, CMS creates rules to control aggressive patients in order to protect patients’ rights.  These competing interests often create conflicting obligations for health care facilities.  With Cal OSHA designating health care as a high risk industry for workplace violence and CMS focusing heavily on patient safety and patient rights, health care facilities must carefully navigate these competing obligations to appropriately protect both their employees and their patients.

Employers with affected health care operations in California should consult counsel for assistance with the development of a legally-compliant violence prevention plan and annual training materials in light of this new regulation.

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.

How will the Trump administration handle discrimination cases involving transgender employees? The EEOC’s pursuit of a sex discrimination claim on behalf of Aimee Stephens, a transgender woman who was terminated by a Michigan funeral home for expressing her intention to dress in conformance with her gender identity, will be an early indicator.

In a brief filed with the Sixth Circuit on January 26, 2017, Stephens argues that the interests of transgender individuals will not be adequately represented under the new administration. Under the Obama administration, the EEOC sued Stephens’ former employer, R.G. & G.R. Harris Funeral Homes, for sex discrimination on her behalf. The funeral home owner argued permitting Stephens to dress as a woman would conflict with his Christian beliefs and pose a threat to his free exercise of religion. The Eastern District of Michigan dismissed the EEOC’s lawsuit in August 2016 on the grounds that the funeral home is exempt from Title VII under the Religious Freedom Restoration Act (“RFRA”). Although the EEOC appealed to the Sixth Circuit in October 2016, Stephens filed a motion to intervene as plaintiff-appellant, citing her belief that the new administration would not adequately represent her interests.

Over the course of Obama’s presidency, the trend in federal government was the extension of protections for transgender individuals. Many federal agencies, including the EEOC, OFCCP, OSHA, and HHS, previously promulgated rules and guidance affording increased protections for transgender individuals. Numerous federal courts, including the First, Sixth, Ninth, and Eleventh circuits, have applied theories of sex stereotyping under Section 1983 or Title VII, resulting in protections for transgender individuals. Few courts, however, have found gender identity or transgender status is a protected class under Title VII. Indeed, the district court in G.R. & R.G. Funeral Homes rejected that position when presented by the EEOC.

Whether the EEOC will continue to aggressively pursue the expansion of Title VII to include transgender protections remains an open question. While still just a rumor, it has been reported that the Trump administration is considering an executive order that would provide individuals and organizations the ability to deny employment, as well as services and other benefits, to LGBT individuals on religious grounds. In her motion, Stephens references the removal of the White House webpage dedicated to LGBT rights, the federal government’s requests for extensions of time in other civil rights cases, and the President’s authority over EEOC appointments as reasons she believes her interests may not be adequately represented. Further, the current acting chair of the EEOC, Victoria Lipnic, was one of two commissioners who voted against the EEOC’s July 2015 decision that held that sexual orientation is included within the definition of sex for discrimination purposes under Title VII. The Trump administration also has rescinded guidance previously issued by the departments of Education and Justice under the Obama administration that took the position that the Title IX prohibitions of discrimination “on the basis of sex” require access to sex-segregated facilities based on gender identity.

On the other hand, the EEOC filed its opening brief with the Sixth Circuit just two weeks after Stephens moved to intervene, arguing that (a) discrimination based on transgender status and/or transitioning is inherently sex discrimination under Title VII; and (b) the RFRA does not provide the for-profit funeral home a defense in this case. This stance is consistent with that taken by the EEOC while Obama was in office. Further, Trump has indicated Executive Order 13672, which banned federal contractors from discriminating against LGBT employees, will stand.

Stephens’ case may have implications for the protection of transgender employees at the federal level, but employers need to keep in mind that many states explicitly prohibit discrimination against transgender workers. At least sixteen jurisdictions – including California, Illinois, Maryland, Massachusetts, New Jersey and the District of Columbia – now include gender identity as a protected characteristic under their discrimination laws.

Employers are advised to familiarize themselves with their state and local laws, to take a proactive role in preventing transgender, or gender identity, discrimination in the workplace, and to have a plan in place to accommodate the potential needs of transgender workers.

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.

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.