An Overview of OSHA Healthcare Enforcement

Presented by: Thomas Benjamin “Ben” Huggett Littler Mendelson, PC Philadelphia

March 27, 2014

Occupational Safety & Health Act of 1970

29 U.S.C. § 651, et seq. (“OSH Act”)

Most comprehensive national legislation ever enacted with respect to worker health and safety

Broadly covers any employer with one or more employees

OSHA Enforcement Scheme

Inspections

Citations

Penalties

Basis for the Inspection

Probable Cause Required – Complaint

– Referral

– Neutral Program

Warrant requirement – OSHA subpoenas

Consensual inspections – Scope of consent

Plain View Exception

Injury/Illness Rate Driver

In March 2013 OSHA sent letters to 9,413 employers notifying them that its 2011 Data Initiative showed that they had among the highest injury and illness rates in the country – Above their industry average

Site Specific Targeting (SST) Program – DART Rate above 15.0 or DAWFII Rate above 14.0 = primary inspection list

for a programmed, comprehensive inspection of the worksite

– DART Rate is above 7.0 or DAWFII Rate above 5.0 = secondary inspection list for a programmed, comprehensive inspection after all the primary inspections in a geographic region are conducted

OSHA’s Inspection Rights

No Advance Notice of Inspections

Right to Inspect Records

Videotaping & Photographs – trade secret protection for hospitals

Employer’s Rights

Right to Request a Warrant

Right to a Reasonable Inspection

Right to an Opening Conference – CSHO credentials

– basis for inspection

Walkaround: Right of Accompaniment

Right to Representation of Management

Right to a Closing Conference

Employer’s Rights

You have the right not to commit stupid acts during an inspection

No re-enactment of activities

The Inspection

Ask to see the Complaint/Warrant

Ask the CSHOs to wait until appropriate managers/attorneys are notified

Opening conference and agreed scope

Document requests and reviews

The walk-around

Employee interviews

Identifying trade secrets

Sampling/Photos/Videotapes

Inspection Interviews

Of Management Personnel – The employer has the right to be present at interviews

of management personnel

– The employer should schedule management interviews

– Management witnesses should be properly prepared for OSHA interviews and depositions

– Attorneys may/should play a role in OSHA interviews

Inspection Interviews (cont’d)

Of Hourly Employees – OSHA usually demands privacy for hourly employee interviews

– OSHA always allows a union representative to be present

– Employee may request management or attorney presence

– There are factors in favor of allowing OSHA private interviews on employer time and premises

– OSHA must be reasonable regarding its interview requests

Production of Documents

Generally, employers should insist on written document requests from OSHA – Allows for analysis of possible objections

– Assists in keeping track of produced documents

– Allows sufficient time to ensure appropriate compliance

Production of Documents (cont’d)

Exceptions to prior written request requirement: – OSHA 300 Logs and Form 301s must be provided within 4 hours

of a request by OSHA

– Required written programs, e.g., Hazard Communication, LOTO, Hearing Conservation, Respiratory Protection, Bloodborne Pathogens, Confined Space, Emergency Action

Employers must carefully review any OSHA request for medical records. The ADA requires privacy but OSHA has Medical Access Order provisions.

Closing Conference

Attendance at the Closing Conference

CSHO will advise employer of violations

Obtain information from CSHO – What were standards violated?

– What are bases for violations?

– What are possible abatements?

– Why proposed abatement dates?

– What did employer do well?

– What classifications and penalties?

Citations

Must be issued 6 mos. after commencement of inspection

Violations – Combined and grouped violations

Classifications – Willful

– Repeat

– Serious

– Other than serious

Employee Complaints

Section 11(c) of the OSH Act prohibits retaliation against employees who: – Make complaints about safety and health

– Assist OSHA during hearings or proceedings

Complaints protected even if unwarranted if made in “good faith”

Compliance at Your Worksites

Most frequently cited Standards for General Industry Hospitals (FY 2012) – 1910.1030 Bloodborne pathogens – 1910.0305 Electrical wiring and equipment – 1910.1200 Hazard Communication – 1910.0147 The control of hazardous energy (lockout/tagout) – 1910.0132 Personal Protective Equipment – 1910.0134 Respiratory Protection – 1910.0212 General Machine guarding – 1926.1101 Asbestos – 1904.0029 Injury and Illness Recordkeeping – 1910.0037 Exit Routes

General Duty Clause

Section 5(a)(1) of the OSH Act

Requires that “[e]ach employer...furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm...”

General Duty Clause

Elements of a general duty clause violation: – Hazard

– Serious in nature

– Recognized

– Preventable

OSHA’s New Webpage

Old Ideas Made New Again

– Safety and Health Program – January 1989

– Ergonomics – November 2000

– Workplace Violence – July 1996

Safety and Health Management Systems

Management leadership: Managers demonstrate their commitment to improved safety and health, communicate this commitment, and document safety and health performance. They make safety and health a top priority, establish goals and objectives. provide adequate resources and support, and set a good example.

Employee participation: Employees, with their distinct knowledge of the workplace, ideally are involved in all aspects of the program. They are encouraged to communicate openly with management and report safety and health concerns.

Hazard identification and assessment: Processes and procedures are in place to continually identify workplace hazards and evaluate risks. There is an initial assessment of hazards and controls and regular reassessments.

Safety and Health Management Systems

Hazard prevention and control: Processes, procedures, and programs are implemented to eliminate or control workplace hazards and achieve safety and health goals and objectives. Progress in implementing controls is tracked.

Education and training: All employees have education or training on hazard recognition and control and their responsibilities under the program.

System evaluation and improvement: Processes are established to monitor the system's performance, verify its implementation, identify deficiencies and opportunities for improvement, and take actions needed to improve the system and overall safety and health performance.

A Handy Checklist

Ergonomics Again

Workplace Violence

A Quick Resource

OSHA Website

– www.OSHA.gov

Questions?

Thomas Benjamin “Ben” Huggett Littler Mendelson, PC

Philadelphia