THE HOTTEST OSHA TOPICS IN HEALTHCARE · 2019. 12. 4. · 2019 WORKPLACE SAFETY SYMPOSIUM OGLETREE,...

2019 WORKPLACE SAFETY SYMPOSIUM

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 2-1

THE HOTTEST OSHA TOPICS

IN HEALTHCARE

Valerie N. Butera – Ogletree Deakins (Detroit (Metro))

Elvige Cassard – Ogletree Deakins (New Orleans)

Dee Anna D. Hays – Ogletree Deakins (Tampa)



2020 will be another busy year for health care employers. Highlighted below are some of

the key recent development that employers should note.

I. Frequently Cited Areas

A. Workplace Violence Prevention

On February 27, 2019, the U.S. House Subcommittee on Workforce Protections held a

hearing on House Resolution 1309, the Workplace Violence Prevention for Health Care and

Social Service Workers Act, introduced by Representative Joe Courtney (D-CT). Courtney

introduced a prior version of the bill in November 2018, House Resolution 7141, but it did not

move forward. Although there has not been any recent movement, this hearing indicates that the

current bill may not ultimately suffer the same fate.

Like its predecessor, the current bill would force the Occupational Safety and Health

Administration (OSHA) to issue an occupational safety and health standard that requires covered

employers within the healthcare and social service industries to develop and implement

comprehensive workplace violence prevention plans. The core of the bill centers on giving teeth

to OSHA’s Guidelines for Preventing Workplace Violence for Healthcare and Social Service

Workers.

The bill acknowledges that OSHA already frequently cites employers for failing to take

steps to prevent workplace violence under the General Duty Clause, Section 5(a)(1) of the

Occupational Safety and Health Act of 1970 (OSH Act), but emphasizes that employer

organizations have challenged the agency’s authority to do so. Under the clause, all employers

are required to keep their workplaces “free from recognized hazards that are causing or are likely

to cause death or serious physical harm.” OSHA’s stance that workplace violence is a serious,

recognized hazard in several high-risk industries, including healthcare, is undisputed.

The bill is onerous for employers, requiring each workplace violence prevention plan to

include:

Designation of an individual responsible for implementing the plan;

Risk assessments and identification of potential workplace violence hazards

(informed by specific past violent incidents);

“Hazard prevention, engineering controls, or work practice controls to correct, in a

timely manner, hazards that the employer creates or controls applying industrial

hygiene principles of the hierarchy of controls”;

“Reporting, incident response, and post-incident investigation procedures”;

“Procedures for emergency response, including procedures for threats of mass

casualties and . . . incidents involving a firearm or a dangerous weapon”;

employee training;

“Procedures for coordination of risk assessment efforts, [p]lan development, and

implementation of the [p]lan with other employers who have employees” involving

the same facility or services; and

Annual evaluations.



If passed, the bill would require OSHA to adopt an interim final standard on workplace

violence prevention within 1 year of its enactment, promulgate a proposed final standard within

2 years of enactment, and then issue a final standard within 42 months of enactment. If OSHA

fails to timely adopt an interim final standard as outlined in the bill, then the provisions set forth

in the bill would go into effect and have the same weight as an OSHA standard until superseded

by a proper interim final rule.

Due to this pending legislation and OSHA increasing the amount of workplace violence-

related inspections over the past year, the time is now for healthcare employers to audit and

update their workplace violence prevention programs.

B. Failure to Report

All employers are required to notify OSHA when an employee is killed on the job or

suffers a work-related hospitalization, amputation, or loss of an eye. A fatality must be reported

within 8 hours. An in-patient hospitalization, amputation, or eye loss must be reported within 24

hours. Notification may be made by telephone or in person to the OSHA Area Office that is

nearest to the site of the incident, by telephone to the OSHA toll-free central telephone number,

(800) 321-6742, or by electronic submission using the reporting application located on OSHA’s

public website at www.osha.gov/report_online. Note that reporting information for state plan

states may vary and that additional recordkeeping requirements may apply.

To ensure compliance, employers should designate who will captain reporting and

recordkeeping for their organizations and provide regular training. Auditing logs on a regular

basis can serve as a vehicle to correct errors and identify trends. Moreover, taking the time to

evaluate trends can help employers strategize on how to better to prevent future injuries and

illnesses.

II. Developing Issues

A. Drug Testing and Legalized Marijuana in the Workplace

Multistate employers may be finding it difficult to keep pace with the patchwork of state

and local drug testing laws. In addition to legalizing medical and/or recreation marijuana, states

are passing laws that directly affect the workplace by prohibiting discrimination against medical

marijuana cardholders or discrimination based solely on positive drug tests for marijuana.

In the past, the federal government decided not to enforce most of the act. In a policy

updated on August 29, 2013, the U.S. Department of Justice (DOJ) announced that it is generally

taking a hands-off approach, with the exception of a few areas, such as distribution to minors and

organized crime. According to then-U.S. Attorney General Eric Holder, “It will not be a priority

to use federal resources to prosecute patients with serious illnesses or their caregivers who are

complying with state laws on medical marijuana, but we will not tolerate drug traffickers who

hide behind claims of compliance with state law to mask activities that are clearly illegal.”

But the tides have turned once again. On January 4, 2018, Attorney General Jeff Sessions

reversed the DOJ’s position under the Obama administration, in which the DOJ adopted a hands-

http://www.osha.gov/report_online



off approach to enforcing federal marijuana laws in those states where marijuana was legal for

medical and/or recreational use. But in his one-page memorandum to U.S. attorneys, Sessions

reversed this approach, emphasizing the fact that marijuana has, and continues to be, unlawful

under the federal Controlled Substances Act. What the Sessions memorandum means for

employers depends largely on state law. Only a few states have addressed how federal marijuana

law affects workplaces in states where marijuana is legal.

Notwithstanding, an employer’s primary concern in hiring and employment is

maintaining a safe and productive work environment. The use of drugs and alcohol, as well as

the misuse of prescription drugs, can interfere with these legitimate concerns in obvious ways.

So far, no laws have prohibited an employer from enforcing workplace rules prohibiting using,

possessing, or being under the influence of alcohol and/or controlled substances, including

marijuana while at work. Courts have issued various decisions thus far, demonstrating the

contours of the lawful interaction between medical marijuana and the workplace. What remains

constant is an employer’s requirement to accommodate underlying medical conditions that

constitute disabilities under state and federal law. A template letter and interactive process

questionnaire has been included with these materials.

Further, increased legalization of marijuana and the continued opioid abuse epidemic,

will ensure that these issues will not go away anytime soon. Employers should assess the effect

that this will have on the workplace.

Update Policies. Employers should review and update policies in light of the new

legal landscape. Policies should appropriately address prescription drug use and

abuse. Policies should not, however, include blanket prohibitions and disclosure

requirements related to the use of prescription medications. The policies should

provide for individualized assessments for employees who may be impaired by the

use of prescription drugs. Employers may want to clarify policies to expressly forbid

the use or possession of marijuana at the workplace.

Educate. Employers will need to educate supervisors and employees regarding

company policy relating to medical marijuana and prescription drugs.

Drug Testing. Employers may also want to revisit their drug testing policies.

Companies may consider the propriety of pre-hire screening, random drug testing,

reasonable suspicion testing, and post-accident testing. Drug testing laws vary in

states. Employers should maintain a uniformly implemented pre-hire drug testing

program. Random drug testing may be subject to greater scrutiny by the courts though

some industry sectors, such as transportation, and certain government contractors,

employers are obligated to test workers. Random testing of employees working in

safety-sensitive positions is also commonly accepted.

Safety. Inevitably, when more workers experiment with recreational drug use, or take

prescription drugs that effect motor skills, workplace accidents will increase.

Renewed efforts to ensure workplace safety may become paramount, particularly in

industrial settings. Worker efficiency, health, and well-being will be of no less

concern. Many employers routinely drug test employees after a workplace accident,



and OSHA has recently published a memorandum affirming the legality of post-

accident testing – provided that it is done in a retaliatory fashion to chill employees

from reporting injuries or illnesses.

EAP. Many employers have instituted Employee Assistance Programs (EAPs) to help

employees cope with a variety of problems, including prescription drug abuse. It may

be time to consider whether additional resources may be needed to address an

increase in drug abuse.

B. Infectious Diseases and Bloodborne Pathogens

The Black Plague. Cholera. Typhoid. Tuberculosis. Small Pox. H1N1. Ebola. What

do these diseases all have in common? At some time in history, these diseases have reached or

have had the potential to reach pandemic proportions—beyond a mere, localized epidemic. As

seen in 2014 with Ebola, modern society, even after enormous progress in medicine and science,

is not immune from the breathtaking scope and impact of disease triggered by tiny

microorganisms. Disease affects society at all levels, placing a burden on communities and the

day-to-day activities of the populace, including the workplace. Because pandemics are both

alarming and sudden, the appearance or threat of a pandemic often presents challenges for

employers managing a workforce of any size.

In determining the employer’s duties to employees in the face of a particular disease,

OSHA will look to the General Duty Clause and recognized standards in the industry, Centers

for Disease Control and Prevention (CDC) guidelines, published papers, standards developed by

the American National Standards Institute (ANSI), current World Health Organization (WHO)

recommendations, medical digests, and information shared by the National Institute for

Occupational Safety and Health (NIOSH), which is the federal agency charged with conducting

research and training on occupational safety and health, and with integrating knowledge to

prevent occupational injuries. Likewise, the scope of an employer’s obligations under the

General Duty Clause depends upon the circumstances. For example, the obligations of a hospital

treating patients infected with a disease will differ from the obligations for a typical office.

OSHA has issued a document entitled “Guidance on Preparing Workplaces for an Influenza

Pandemic1 that sets out OSHA’s view of actions “low,” “medium” and “high-risk” facilities

should take.2 Also, an employer’s duty may change over time – in a matter of weeks or months

– if a virus becomes more prevalent in the United States or demonstrates a greater ability to be

transmitted from one human to another.

Besides the General Duty Clause, certain OSHA standards also may apply to your

workplace, including whether you are using universal precautions under the Bloodborne

Pathogens standard (29 CFR 1910.1030), which applies not only in healthcare settings but with

any environmental and housekeeping activities when interacting with blood, and the standards

governing personal protective equipment (PPE), such as respiratory protection (29 CFR

1910.132, .134). An essential requirement under OSHA’s PPE standard is the requirement to

1 See http://www.osha.gov/Publications/influenza_pandemic.html. 2 See also http://www.osha.gov/dsg/topics/pandemicflu/index.html.

http://www.osha.gov/Publications/influenza_pandemic.html

http://www.osha.gov/dsg/topics/pandemicflu/index.html



perform a hazard assessment, which identifies the hazards in the workplace and the type(s) of

PPE needed to address those hazards.

Employers should be aware of other OSHA requirements that may relate to infectious

diseases. Specifically, OSHA’s recordkeeping regulation (29 C.F.R. Part 1904) requires

employers to record work-related injuries and illnesses that meet any one of the recording

criteria. For example, if an employee transmits a virus to another employee and time-off or

medical treatment is necessary, then the employer must record the illness on the “OSHA 300

Log.” The recordkeeping regulation does not require employers to record cases of the “common

cold or flu” that are transmitted in the workplace, but does require work-related cases of

tuberculosis and “other contagious diseases” to be recorded if they meet the recording criteria.

Also, if employers provide respirators or dust masks to employees, OSHA’s Respiratory

Protection standard, 29 C.F.R. Section 1910.134, applies.

Another issue that arises when a pandemic looms is how to react to an employee who

refuses to come to work because of a concern that he or she may become infected by an

infectious disease. Under certain circumstances, the OSH Act may also protect an employee

from retaliation for refusing to perform work as directed. Specifically, an employee may refuse

an assignment that involves “a risk of death or serious physical harm” if the following conditions

apply: (1) if the employee has asked the employer to eliminate the danger and the employer

failed to do so; (2) the employee refused the work in good faith (a genuine belief that an

imminent danger exists); (3) a reasonable person would agree that there is real danger of death or

serious injury; and (4) there is not enough time, due to the urgency of the hazard, to correct the

hazard through regular enforcement channels (like an OSHA inspection).

While each situation is different, a thorough review of the facts should be conducted

before any disciplinary action is taken against an employee who refuses to perform their job for

fear of exposure to, for example, the Ebola virus. Another option is to assign the employee an

alternative task that will not expose him or her to the alleged risk.

OSHA promulgated guidance for employers during the Ebola crisis.3 Similarly, the

agency created guidelines for employers dealing with pandemic influenza.4 These guidelines

were written in response to issues raised by the respective virus outbreaks, but they contain links

to information that would be helpful in general pandemic planning concerning training, personal

protective equipment, and how certain, specific industries should respond.

In the event of a pandemic, employers will play a key role in protecting employees’

health and safety, as well as in limiting the impact on the economy and society. Employers will

likely experience employee absences, changes in patterns of commerce and interrupted supply

and delivery schedules. Proper planning will allow employers in the public and private sectors to

better protect themselves from the potentially disastrous impact of a pandemic.

3 https://www.osha.gov/SLTC/ebola/standards.html. 4 https://www.osha.gov/SLTC/pandemicinfluenza/index.html.

https://www.osha.gov/SLTC/ebola/standards.html

https://www.osha.gov/SLTC/pandemicinfluenza/index.html



Based on the discussion above, we now turn to offering practical information to help

guide employer responses:

Pre-Pandemic Planning

1. Create a contingency planning group. Include, in any task force, representatives

of departments that would play a large role if a pandemic became a reality: e.g., human resources

(HR), information technology (IT), executive management, communications, and other critical

parts of the business.

2. Assess your industry’s vulnerability. Animal handlers, healthcare practitioners,

transportation workers, and employers with footprints in the countries where larger outbreaks are

confirmed all are at greater risk than the general public.

3. Assess your operations. How well positioned is the company to respond to

evolving, unpredictable threats? Good qualities in a business to respond to such a threat are: a

networked authority structure; distributed leadership; a dispersed workforce; cross-trained

generalists; and simple yet flexible rules.

4. Identify essential operations/employees. Business continuity is the primary goal in

the event of a pandemic. Identify suppliers, shippers, resources and other businesses with which

the company must interact on a daily basis to reduce the risk of disruptions in the supply chain

and distribution network. Evaluate plans if any of these providers were forced to shut down or

impose restrictions during a pandemic.

5. Run hypotheticals. Ask questions like: Which employees can work at home?

Who needs IT upgrades in advance to make that possible? Whose physical presence is required?

What lines of production or service can be shut down without jeopardizing the entire enterprise?

6. Think about where you can find replacement employees. Finding replacements

will be impossible if you wait until the pandemic hits. Cross-train employees, form alliances

with temporary employment firms, and consider partnering with companies in industries that are

likely to be hard hit by a pandemic (such as the hospitality and travel industries).

7. Assess the feasibility of telecommuting or expanding your telecommuting

program. Many, if not all, of your employees are going to be interested in telecommuting if a

serious pandemic threat exists. Assess whether your business could function with widespread

telecommuting, and make sure you have a proper telecommuting agreement and social media

policy in place with those employees who do telecommute. If you determine that you can create

or expand telecommuting options, simulate it by having many employees attempting to log in

and work at the same time to assure its effectiveness.

8. Establish availability and redundancy of critical communications systems. In the

event that you are required to have your employees stay at home and work, make sure you will

be able to communicate with them. Password-protected company intranets are perfect for this

purpose.



9. Form a relationship with local healthcare facilities. Healthcare providers are

acutely aware of pandemic risks and continually are making plans now for the possibility. Those

employers that are proactive and form relationships with such providers have a better chance to

be at the “front of the line” for help if and when such a pandemic hits.

10. Train your employees. Employee training is something concrete employers can

point to if questioned about compliance with the OSH Act’s “general duty” clause. Training

should include, at a minimum:

Awareness of modes of transmission.

Recognition of symptoms.

Knowledge of a reporting process in event of possible/actual infection.

Familiarity with hygiene mechanisms. This would include cough etiquette, proper

hand washing, making available and using alcohol-based hand sanitizers or

disinfectant wipes, cleaning doorknobs, phone handsets, and elevator buttons, and

wearing masks or respirators where the disease may have hit.

11. Buy an insurance policy for short-term disability and salary continuation

programs. Short-term disability and salary continuation programs that are wholly supported by

existing assets may be insufficient if a significant amount of the work force is absent for an

extended period because of a pandemic. Employers can avoid this risk by adopting insured short-

term benefit programs.

Dealing with a Crisis

1. Don’t panic. Foremost, always remember that when a pandemic is looming, panic

results in unsound decision-making. Proper preparation, issue spotting, and measured decision-

making tailored to the situation at hand all are critical when the public, media and employees are

in full-blown panic mode. The first emergence of a crisis is when employers most often make

crucial mistakes. Remember the crisis may abruptly end, as we saw with Ebola, and employers

are left explaining decisions made in the interim.

2. Activate the company’s pandemic plan. In the event of a pandemic, trigger the

company’s pandemic response plan. The best offense is a good defense, and employers who have

diligently crafted a pre-pandemic plan will be well positioned to weather the negative effects of a

pandemic emergency.

3. Stay informed. During a pandemic monitor its progress so appropriate steps may

be taken to mitigate the risk involved. The government organizations we have identified make it

their mission to educate the public both on the pandemic risks and the progress of the disease.

The CDC, NIOSH, WHO, and other organizations have helpful information on their websites

that is readily available and useful in assessing obligations. Many trade organizations also

provide pertinent information tailored to particular industries during outbreaks. Also keep

informed on efforts to develop a vaccine and antiviral medications, and pandemic preparedness

plans discussed and shared by other companies and organizations.



4. Keep records. OSHA recordkeeping requirements may be difficult to maintain in

the event of a pandemic, but it is vital that employers catalogue employee absences in line with

these requirements. Specifically, OSHA requires employers to record work-related illnesses that

involve:

Death.

Days away from work.

Restricted work or job transfer.

Medical treatment beyond first aid.

A significant injury or illness diagnosed by a physician or medial healthcare

professional.

An illness is considered work-related if events or exposures in the work environment

caused, contributed to, or significantly aggravated an illness.

5. Revise leave policies. During a pandemic, it is important to create a culture that

encourages employees who are unwell to avoid coming into work. Employers may be forced to

revise attendance and leave policies to give to employees more flexibility in exercising

reasonable discretion about coming to work in the event of illness.

6. Evaluate employee issues as they arise. During a pandemic or pandemic-type

event, common issues are employee attendance, quarantines, and medical examinations. When

an employer believes an employee might have been exposed, the employer often looks to impose

a mandatory leave of absence or quarantine on the employee, or require medical screening, out

of concern for both the employee’s and workplace’s safety and well-being. This can implicate

complicated ADA issues, and employers should evaluate these cases on a case-by-case basis,

assessing whether the situation meets the “direct threat” analysis to justify the employer’s

actions.

7. Sanitize the workplace. Encourage employees to take steps to effectively lessen

the potential spread of germs within the workplace, such as:

Regular hand washing and hand sanitizing.

Covering coughs and sneezes.

Avoiding handshakes.

Do not use other people’s workstations, computers, and phones.

Avoiding face-to-face meetings.

Not inviting unnecessary visitors to work.

8. Watch out for harassment and discrimination. Depending on the nature of the

pandemic or health threat, employers should be on alert for signs of harassment and

discrimination in the workplace related to the pandemic. For example, during the 2014 Ebola

crisis, some employees experienced national origin discrimination and harassment where co-

workers, and in some cases managers, unfairly stereotyped employees of West African descent,

or treated employees from West Africa differently than others. While such actions may be with



the best of intentions, they also may create potential liability under Title VII or state anti-

discrimination laws.

9. Consider an Employee Assistance Program (EAP). EAPs can be helpful by

providing employees with counseling services and by guiding them to useful community

resources during a pandemic. EAPs may also help allay employee’s fears about coworkers and

the risk of infectious diseases.

1

Valerie N. Butera (Detroit (Metro))

Elvige Cassard (New Orleans)

Dee Anna D. Hays (Tampa)

The Hottest OSHA Topics in Healthcare

Workplace Safety Symposium December 4-6, 2019JW Marriott New Orleans

Agenda

• Most Frequently Cited Areas in Healthcare– Workplace violence

– Failure to report

• Hot Topics– Infectious diseases and bloodborne pathogens

– Radiation exposure

– Legalized marijuana in the workplace

2


Maximum Penalties


Workplace Violence

3


What Is Workplace Violence?

• Workplace violence is violence or the threat of violence against workers. It can occur at or outside the workplace and can range from threats and verbal abuse to physical assaults and homicide.

• The workplace may be permanent or temporary (including field locations and clients’ homes).

• https://www.osha.gov/OshDoc/data_General_Facts/factsheet-workplace-violence.pdf


Staggering Statistics

• Effects between 1.5-2 million U.S. workers annually

• Homicide is the fourth leading cause of fatal occupational injuries in the workplace in the U.S.

• Murder is leading cause of death for women in the workplace

• Workplace incident costs an average of $800,000

• From the Bureau of Labor Statistics, Census of Fatal Injuries Summary, 2016: https://www.bls.gov/news.release/cfoi.nr0.htm

4


Occupational Safety and Health Act of 1970• To assure safe and healthful working conditions for working

men and women; authorizing enforcement of the standards developed under the Act ...

• General Duty Clause:


Employer Duties: Specific Standards

• Legislation in nine states (California, Connecticut, Illinois, Maine, Maryland, New York, New Jersey, Oregon, and Washington) mandates that certain types of healthcare facilities implement workplace violence prevention programs

• OSHA: Most healthcare employers are covered by the General Industry Standards found in 29 CFR § 1910

• There is no Federal OSHA Industry Standard addressing workplace violence … yet

5


Federal Measures – Proposed

• House Resolution 1309, the Workplace Violence Prevention for Health Care and Social Service Workers Act, introduced by Rep. Joe Courtney (D-CT).

• Would force OSHA to issue an occupational safety and health standard that requires covered employers within the healthcare and social service industries to develop and implement comprehensive workplace violence prevention plans

• Would give teeth to OSHA’s Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers


Federal Measures – Proposed (cont.)

• The bill would require each workplace violence prevention plan to include:– Designation of individual responsible for implementation– Risk assessments and identification of potential workplace

violence hazards (informed by specific past incidents)– Annual evaluations– “Hazard prevention, engineering controls, or work practice

controls to correct, in a timely manner, hazards that the employer creates or controls applying industrial hygiene principles of the hierarchy of controls”

6


– “Reporting, incident response, and post-incident investigation procedures”

– “Procedures for emergency response, including procedures for threats of mass casualties and . . . incidents involving a firearm or a dangerous weapon”

– Employee training

– “Procedures for coordination of risk assessment efforts, [p]lan development, and implementation of the [p]lan with other employers”

Federal Measures – Proposed (cont.)


Secretary of Labor v. Integra Health Management, Inc., OSHRC No. 13-1124

• The case involves a General Duty Clause citation over the death of a health care service coordinator provider, whose employee checked in on a mentally-ill member with a criminal history that included acts of violence. OSHA cited Integra for exposing employees “to the hazard of being physically assaulted by members with a history of violent behavior.”

• The client had a criminal record (grand theft of a motor vehicle in 1981, battery in 1992, aggravated battery with a deadly weapon in 1990, and aggravated assault with a weapon in 1995).

• Stabbed the employee nine times.

7


Legal Framework – Employer Liability

• OSHA – General Duty Clause

• Workers’ compensation

• Tort

• State law and statutory claims

• Disability discrimination claims


• Conduct background screening

• Craft a tough, consistently enforced anti-violence policy and train employees

• Establish a crisis management team

Best Practices

8


• Important to have written plan and escalation procedures, emergency action plan (EAP)

– Involvement and partnership with local police departments (many have workplace violence units)

– Do regular drills, include active shooter protocols

– Use of technology for first alert system

Best Practices (cont.)


Understanding OSHA Reporting and Recordkeeping

Obligations

9


When must you report an injury or illness to OSHA?


Reporting Requirements – All Employers!

• Fatalities – 8 hours

– What about heart attacks?

– What about car wrecks?

– What about commercial airplane, train, subway, or bus accidents?

– What if the fatality occurs after the work-related incident?

10


Reporting Requirements – All Employers!(cont.)

• Inpatient hospitalizations – 24 hours

– Formal admission to the inpatient service of a hospital or clinic for care or treatment

– What about observation?

– Is an IV considered treatment?


• Amputations – 24 hours

– The traumatic loss of a limb or other external body part

– What about the tip of a finger?

– Loss of a tooth?


11


• Loss of an eye – 24 hours

– What about the loss of use of an eye?

– Blindness?

• What if an in-patient hospitalization, amputation, or loss of an eye occurs after the work-related incident?



• Notification may be made by telephone or in person to the OSHA Area Office that is nearest to the site of the incident, by telephone to the OSHA toll-free central telephone number, (800) 321-6742, or by electronic submission using the reporting application located on OSHA’s public website at www.osha.gov/report_online

• Reporting information for state plan states may vary

• Don’t forget about recordkeeping requirements

Reporting Requirements

12


Internal Reporting Requirements for Employees


Do you have personnel policies that require employees to report?

• Accidents and/or near misses?• Injuries and illnesses?

– Must set up a way for employees to report work-related injuries and illnesses promptly; and

– Must tell each employee how to report work-related injuries and illnesses to you

• Safety hazards and concerns?• Address anti-retaliation

13


When must you record something on an OSHA log? Must logs be

submitted to OSHA?


Recordkeeping Requirements –Part 1904

• Many employers with more than 10 employees at any time during the last calendar year are required to record serious work-related injuries and illnesses– May still be exempt because of industry classification

• OSHA Logs 300, 301, 300A– https://www.osha.gov/recordkeeping/RKforms.html

14


Recordkeeping Requirements –Part 1904.2 Industry Exemption

• Partially exempt industries are excluded, unless asked in writing by OSHA, the Bureau of Labor Statistics, or a state agency with such authority.

• All industries in agriculture, construction, manufacturing, utilities, and wholesale trade sectors are covered.

• Appendix A to Subpart B lists partially exempt industries: www.osha.gov/recordkeeping/ppt1/RK1exempttable.html


OSHA Recordable Injuries and Illnesses

• Any work-related fatality

• Any work-related injury or illness that results in loss of consciousness, days away from work, restricted work, or transfer to another job

• Any work-related injury or illness requiring medical treatment beyond first aid

15


OSHA Recordable Injuries and Illnesses(cont.)

• Any work-related diagnosed case of cancer, chronic irreversible diseases, fractured or cracked bones or teeth, and punctured eardrums

• Special recording criteria for work-related cases involving needlesticks and sharps, medical removal, hearing loss, and TB


1904.8 – Blood borne Pathogens

• Record all work-related needle sticks and cuts from sharp objects that are contaminated with another person’s blood or other potentially infectious material (includes human bodily fluids, tissues and organs; other materials infected with HIV or HBV such as laboratory cultures)

• Record splashes or other exposures to blood or other potentially infectious material if it results in diagnosis of a blood borne disease or meets the general recording criteria

16


1904.29 – Forms

• Employers must enter each recordable case on the forms within 7 calendar days of receiving information that a recordable case occurred

• Forms can be kept on a computer as long as they can be produced when they are needed (i.e., meet the access provisions of 1904.35 and 1904.40)


1904.30 – Multiple Business Establishments

• Keep a separate OSHA Form 300 for each establishment that is expected to be in operation for more than a year

• May keep one OSHA Form 300 for all short-term establishments

• Each employee must be linked with one establishment

17


1904.31 – Covered Employees

• Employees on payroll

• Employees not on payroll who are supervised on a day-to-day basis

• Exclude self-employed and partners, unpaid volunteers, family members on family farms, domestic workers in residential settings

• Temporary help agencies should not record the cases experienced by temp workers who are supervised by the using firm (should not be recorded twice, i.e., by both)


Must Logs Be Submitted to OSHA?

• Yes, upon request – within 4 business hours! 1904.40

18


Electronic Filing

• Required to submit OSHA Form 300A– Establishments with 250 or more employees

– Establishments with 20-249 employees classified in certain industries with historically high rates of injuries and illnesses

– Establishments with fewer than 20 employees at all times during the year do not have to routinely submit information electronically to OSHA

– Reports are due on March 2nd each year – 29 CFR § 1904.41


Retention of Records

• 5 years following the end of the calendar year that these records cover (must update OSHA Form 300 during that period).

• Employee’s medical records must be maintained for 30 years.

• Each employee exposure record must be retained for 30 years.

• Each analysis using medical or exposure records shall be preserved and maintained for 30 years.

19


1904.32 – Annual Summary

• A company executive must certify the summary:– An owner of the company

– An officer of the corporation

– The highest ranking company official working at the establishment, or

– His or her supervisor

• Must post for 3-month period from February 1 to April 30 of the year following the year covered by the summary


1904.35 – Employee Involvement

• Must provide limited access to injury and illness records to employees, former employees, and their personal and authorized representatives– Provide copy of OSHA Form 300 by end of next business day

– Provide copy of OSHA Form 301 to employee, former employee, or personal representative by end of next business day

– Provide copies of OSHA Form 301 to authorized representative within 7 calendar days. Provide only “Information about the case” section of form.

20


What are the Top 10 Recordkeeping Mistakes?


1. Misunderstanding Work Restrictions

2. Not Keeping Privacy Cases Private

3. Missing an Important Witness – The Injured Employee

4. Excessive Reliance on Failure to Immediately Report

5. Misunderstanding Aggravation (Understandably)

40

10 OSHA Recordkeeping Questions(Employers Get Wrong)

21


6. Applying or Being Influenced by Non-OSHA Recordkeeping Criteria

7. Some Common-Sense First Aid Is Recordable

8. Understanding What Is a Prescription Medicine

9. Not Tracking Later Events

10. Failing to Update and Audit Logs

41

10 OSHA Recordkeeping Questions(Employers Get Wrong) (cont.)


Best Practices

• Designate who will captain reporting and recordkeeping for your organization and provide regular training.

• Audit logs on a regular basis.

– Correct errors.

– Pay attention to trends. What can the company do better to prevent future injuries and illnesses?

22



• Regularly review and update company policies on accident reporting, workers’ compensation, drug testing, and safety incentive programs.

• Consistently document and enforce policy violations.

• Document safety audits and other proactive measures.


• OSHA’s recordkeeping tutorial: https://www.osha.gov/recordkeeping/tutorial.html

• Get recordkeeping forms 300, 300A, 301, and additional instructions.

• Read the full OSHA Recordkeeping regulation (29 CFR 1904).

Additional Resources

23


Break Time!


Infectious Diseases

24


Our Framework

• Plan

• Prevent

• React


Plan

25


Planning Considerations

• Form a Task Force– Leadership

– HR

– Safety

– IT

– Public Relations

– Employee reps/Union


Planning Considerations (cont.)

• Create a Pandemic/Infectious Disease Plan– Identify resources, such as local health department

contacts, hospital contacts, sanitation vendors, etc.

• Integrate with your Disaster Preparedness Plan– Emergency communications

– Key employees

– Replacement workers

– Media relations

26


Planning Considerations (cont.)

• Integrate with your Safety Plans– Safety equipment

– Bloodborne pathogens protocols

– Other OSHA compliance

– Have a plan if OSHA shows up onsite

• Review Employment Policies– ADA, FMLA, Leave, Safety, Injury and Illness Reporting, CBAs

• Review Insurance Coverage– STD, LTD, WC, EPLI


Prevent

27


Basic Elements of Prevention

• Promote Good Hygiene

– Hand washing

– Hand sanitizer stations

– Facility cleanliness


Basic Elements of Prevention (cont.)

• Employee Education

– Awareness of threats

– Safety equipment and precautions

– Reporting procedures

– Encourage use of sick time and leave

28


Basic Elements of Prevention (cont.)

• Training

– OSHA Standards

– Legal Compliance (EEO, FMLA, etc.)

• Medical Services

– Health insurance collaboration

– Coordination with onsite providers

– Vaccination program


• State laws vary

– Some states require mandatory vaccines for certain healthcare workers (e.g., HepB)

– Some states require certain employers to offervaccines

– Many states have no statutory barriers

Mandatory Vaccinations?

29


Mandatory Vax Considerations

• Understand state law requirements– https://www.cdc.gov/phlp/publications/topic/vaccinationlaws.html

• Obligation to bargain with the union, if applicable

• Federal law requirements– ADA exemption or accommodation process for disabilities

– Title VII exemption process for religious objections

– Rapidly evolving area of the law• E.g., litigation testing limits of ADA and Title VII requirements

• E.g., new HHS office for Conscience and Religious Freedom (https://www.hhs.gov/conscience/index.html)


Voluntary Vaccinations?

• Consider what vaccines

– Seasonal flu

– Hepatitis for foodservice and hospitality

– HepB for jobs potentially exposed to blood or infectious materials

– Others targeted to impending outbreaks or risks (e.g., measles)

30


Voluntary Vaccinations? (cont.)

• Incentivize to increase participation

– Employer covers the costs

– Convenient location and scheduling

– Catered meals or entertainment

– Financial incentives? Caution: ADA and Title VII


Voluntary Vaccinations? (cont.)

• Reduces risk of ADA/Title VII claims

• Reduces risk of employee relations and negative media issues

• Caution: Having a voluntary program may be mandatory in some situations

– OSHA Bloodborne Pathogens standard regarding HepB

– State laws regarding healthcare or childcare workers

31


React


Assess the Threat

• Assess the threat and temper approach accordingly

– Seasonal flu?

– Isolated infection, such as HepA, MRSA, tuberculosis, etc.?

– Outbreak, epidemic, pandemic concerns?

32


Immediate Care

• Triage the situation

– Has the employee already been seen or treated by a physician?

– If sudden illness at work, send home sick and refer to medical care (or call 911 if appropriate)


Immediate Care (cont.)

• If the infectious agent is known, consult with medical and legal and obtain available info

– CDC Info and Fact Sheets (www.cdc.gov)

– CDC Hotline (1-800-CDC-INFO)

– State/Local Health Departments

33


Mitigate Worksite Risks

• Response will vary significantly depending on the infectious agent

• Follow any applicable OSHA guidelines– E.g., Bloodborne Pathogens Standard

• Follow any health authority guidance

• Clean and sanitize the workspace

• Offer testing and/or additional vaccinations?


Bloodborne Pathogen Programs

34


OSHA’s Bloodborne Pathogens Standard (29 CFR 1910.1030)

• Prescribes safeguards to protect workers from health hazards caused by bloodborne pathogens.

• Requirements address items such as exposure control plans, universal precautions, engineering and work practice controls, PPE, housekeeping, labs, post-exposure follow-up, HAZCOM, and training.


Who Does it Apply to?

• Both public and private sector employers.

• All employers who have employees (even 1 employee counts) with occupational exposure.

35


What is Occupational Exposure?

• Reasonably anticipated skin, eye, mucous membrane, or parenteral contact with blood or other potentially infectious materials that may result from the performance of the employee’s duties.


What if I Have Less Than 10 Employees?

• Covered if they have occupational exposure to blood or potentially infectious materials regardless of how many workers are employed.

• But, exempt from recording and exempt from maintaining a sharps injury log.

36


Use of Engineering and Work Practice Controls

• Used to eliminate or minimize employee exposure.

• Considerations like sharps disposal containers, self-sheathing needles, and safer medical devices.


OSHA Guidance on Safer Medical Devices?

• Not really. OSHA does not approve or endorse any product.

• Employers must identify and implement appropriate, commercially available and effective safer medical devices for the specific medical procedures being conducted.

• If no safer device on the market, you are not required to choose something new.

37


What is in an Exposure Control Plan?

• Exposure determination

• Procedures for evaluating exposure incidents

• Schedule of how the standard will be implemented

• Documentation of procedures


Compliance Resources

• https://www.osha.gov/SLTC/bloodbornepathogens/

• https://www.osha.gov/SLTC/bloodbornepathogens/enforcement.html

• https://www.osha.gov/sites/default/files/enforcement/directives/CPL_02-02-069.pdf

38


Radiation Exposure


Today’s Headlines

• Lawsuit: Surgeon’s cancer caused by improper radiation safety at hospital

• Medical imaging technology puts doctors at risk for cancer

• Are physicians unaware about the effects, risks of radiation exposure?

39


OSHA’s Traditional Approach to Radiation Exposure

• OSHA regulations specific to ionizing radiation are found at 29 CFR 1910.1096.

• But OSHA has not traditionally investigated employee exposure to ionizing radiation in healthcare.


Healthcare Employees Making OSHA Aware

• Multi-layered approach – unions, affected/disgruntled employees, medical device industry

• Caused NIOSH to study the problem and will likely lead to more specific guidance and/or regulations for healthcare industry

40


Best Practices for Employers

• Training!

– Even very basic training on radiation shown to improve healthcare employees’ safety practices

– Ensure all employees working with/around radiation are trained on the specific equipment used



• Perform organization-wide audit of equipment with a medical physicist.

• Evaluate PPE to ensure it is sufficient to protect employees from anticipated exposure.

41


Legalized Marijuana in the Workplace – Don’t Get Lost in

the Weeds


Marijuana is a Nationwide Concern

• Over 70% of Americans live in states permitting at least some marijuana use

• 33 states have legalized medical marijuana

• 10 states and Washington, D.C. have legalized recreational use

• 9 more states close to full legalization

42


Applicable Federal Laws

• Controlled Substances Act

• Americans with Disabilities Act

• Occupational Safety and Health Act

• Drug-Free Workplace Act

• Federal contractors and recipients of federal grants must prohibit use of marijuana as a condition of participation

• DOT Guidelines prohibit the use of medical marijuana for transportation workers in safety-sensitive jobs

43


Anti-Discrimination Laws

• Most MMLs/court decisions provide that employers are NOT required to accommodate intoxication, use, or possession in the workplace

• But…


Medical Marijuana and Job Protections

• 12 states with medical marijuana statutes containing express job protections/anti-discrimination provisions:

1. Arizona2. Arkansas3. Connecticut4. Delaware5. Illinois6. Maine

7. Minnesota8. New York9. Nevada10. Pennsylvania11. Rhode Island12. Oklahoma

44


Medical Marijuana and Job Protections (cont.)

• In states with anti-discrimination provisions, merely possessing a medical marijuana card or testing positive for marijuana on a random or pre-employment drug screen generally not sufficient cause for automatic adverse action against employee

• In most cases, employer must demonstrate that the employee used, possessed, or was impaired by the drug at work


Marijuana Types

45


Testing/Detection Issues

• Pre-Employment

• Random

• Post-Accident

• Reasonable Suspicion

– State-specific laws may apply

– Training is paramount


ADA/FMLA/Leave Laws

• No duty to accommodate illegal drug use

• Recovering addict provisions

• May have a duty to engage in the interactive process if there is a reason to believe the employee is disabled

• May have to consider whether FMLA or other leave is appropriate for underlying medical condition

46


Workplace Safety Considerations

• Duty to provide safe workplace is paramount.

• Medical marijuana may have positive medical benefits, but there are potential negative effects, particularly in an inherently hazardous work environment.

• Currently, there is no reliable metric for determining when a particular level of THC from marijuana usage impairs the user and for how long the user remains impaired.


What Should Employers Do Now?

• Plan ahead– Review/consider drug testing policy (generally no “one size fits all”

policy for nationwide compliance)

– Implement supervisor and employee training

– Provide employee education and offer employee assistance

– No state currently restricts employer prohibition on recreational use, but beware of “lawful off-duty conduct” litigation

– Uniformly enforce drug testing policies to avoid discrimination claims

– Get qualified assistance as necessary

47

Valerie N. Butera (Detroit (Metro))

Elvige Cassard (New Orleans)

Dee Anna D. Hays (Tampa)

The Hottest OSHA Topics in Healthcare

Elvige CassardOf Counsel || New Orleans

Elvige Cassard (formerly Richards), maintains an extensive practice in

the area of labor and employment law through pro-active advices to and

legal representation of employers, including business owners and

managers. Ms. Cassard received her B.A. from Newcomb College of

Tulane Universi� and, in December ��, her J.D. from Loyola

Universi� School of Law (New Orleans). Ms. Cassard was a member of

the Loyola Law Review and Moot Court Sta�. She also received the

Loyola Law Clinic Award and McCauley Scholarship, and served as the

Student Bar Association Class Representative.

Ms. Cassard is a member of the New Orleans and Covington Bar

Associations, the Louisiana State Bar Association (“LSBA”) and the

American Bar Association (“ABA”). She is admi�ed to the bars of all

federal courts in Louisiana, including the U.S. Fi�h Circuit Court of

Appeals. She belongs to the Labor and Employment Law (“LEL”) and

Litigation Sections of the ABA, and is a member of the LEL’s

Commi�ees on Equal Employment Opportuni� and is on the LSBA

Employment Law Commi�ee. She is a past facul� member of the

National Institute for Trial Advocacy, and of the Advisory Board of the

St. Tammany Healthcare Alliance and is a past Chair of the Employee

Relations Council of the Louisiana Association of Business & Industry

(“LABI”). Ms. Cassard is a contributor to the BNA treatises and its

supplements, Employment Discrimination Law and Employment at

Will. In addition to successfully representing employers in labor and

employment related lawsuits, arbitrations, mediations and other actions

before various state and federal courts and agencies, Ms. Cassard

advises clients on a wide spectrum of personnel issues and policies and

has given and contributed to numerous trainings, speeches and

presentations on labor and employment law issues.

https://ogletree.com/locations/new-orleans

tel:+15046483858

mailto:[email protected]

https://ogletree.com/wp/wp-admin/admin-post.php?action=get_vcard&pid=3743&name=elvige-cassard

https://ogletree.com/

Dee Anna D. HaysShareholder || Tampa

Dee Anna Hays is Board Certified in labor and employment law by the

Florida Bar. She has been representing employers in all aspects of labor

and employment law compliance and litigation for over �� years. As a

result, Dee Anna understands the legal issues as well as the practical

issues confronting management. She enjoys counseling clients to solve

tough issues and ardently defends them when necessary.

A growing portion of Dee Anna’s practice focuses on occupational

safe� and health issues. She litigates OSHA cases and represents

employers during government inspections and investigations. Dee Anna

also frequently guides employers in handling workplace fatalities and

other severe accidents.

Dee Anna represents employers in a wide range of industries, including

healthcare, retail, construction, technology, electrical utilities, and not-

for-profit. She advocates in federal and state courts and before

numerous government agencies — including the DOL, EEOC, OSHA,

NLRB, OFCCP, HHS, and FCHR. On a regular basis, Dee Anna also

handles handbook and compliance reviews on a national scale for large

employers to proactively minimize liabili� (including privileged wage

and hour and safe� audits).

Dee Anna serves as the Director of Legislative A�airs for HR Tampa

(SHRM) and is a past co-chair of the Labor & Employment Law Section

of the Hillsborough Coun� Bar Association. She is a nationally

recognized speaker and author on labor and employment law issues.

Dee Anna has a �-year-old son and a �-year-old daughter. When she isn’t

chasing her toddlers around Tampa Bay, she enjoys running in trail

races. Her favorite distance is the half-marathon.

https://ogletree.com/locations/tampa

tel:+18132217239

mailto:[email protected]

https://ogletree.com/wp/wp-admin/admin-post.php?action=get_vcard&pid=4010&name=dee-anna-d-hays

https://ogletree.com/

THE HOTTEST OSHA TOPICS IN HEALTHCARE · 2019. 12. 4. · 2019 WORKPLACE SAFETY SYMPOSIUM OGLETREE,...

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