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OSHA Reaches Landmark Settlement With Nursing Care Center On Safe Patient Handling

Aug 26, 2015   //   by .   //   Federal, News  //  No Comments
OSHA has landed a significant agreement with an Ohio nursing care facility that stipulates new policies and procedures for safe lifting and repositioning of residents — a step forward in the agency’s efforts to tackle the growing issue of ergonomics in health care through enforcement and negotiation with employers instead of rulemaking.

Hiring a safety consultant well-versed in ergonomics is central to the settlement with Twin Towers, a provider of skilled nursing care services in Cincinnati. The stipulation comes as OSHA implements a wide-ranging health care enforcement program partly aimed at pressing hospitals and residential care centers to pay greater attention to musculoskeletal injuries.

Twin Towers’ settlement with OSHA includes retaining a specialized safety consultant with ergonomics expertise to recommend improvements to its resident handling program. Anticipated changes include minimal lifting by caregivers; using safe handling technologies, such as mechanical lifts; repositioning aids; and training for workers, OSHA said in a recent statement. Twin Towers is a nonprofit corporation operating under Life Enriching Communities, and employs about 300 workers.

The company will report to OSHA on improvements to its program within six months and must pay a penalty of $18,200 to resolve OSHA citations issued in June. OSHA cited a high rate of musculoskeletal injuries for caregivers based on a review of injury and illness logs after conducting an inspection. OSHA says the company “cooperated fully” with the investigation.

An official with the corporate office of Life Enriching Communities could not be reached before press time. The corporation also operates Twin Lakes, a senior living community in Montgomery.

The settlement agreement between OSHA and Twin Towers calls for a review of Twin Lakes’ policies and procedures for resident handling.

OSHA brings the broader ergonomics issue to the forefront in touting the settlement, saying work-related musculoskeletal disorders are among the most frequently reported causes of lost or restricted work time. The agency cites Bureau of Labor Statistics data for 2013 showing that overexertion accounted for almost half of all reported injuries in the health care industry. Nurses and nursing assistants each accounted for a “substantial share” of this total, OSHA said, adding that among all occupations, orderlies, nursing assistants and personal care aides had some of the highest musculoskeletal disorder rates in 2013.

Nursing facilities have among the highest rates of serious work-related injuries and musculoskeletal disorders, including those of the neck, upper extremities and lower back, which account for a significant portion of those injuries, OSHA noted.

“Musculoskeletal disorders are preventable,” said Ken Montgomery, OSHA area director in Cincinnati. “An effective, safe resident handling program will reduce muscle fatigue, increase productivity and reduce the number and severity of work-related injuries.”

“Twin Towers recognizes the need to make changes to its resident handling procedures to prevent injury to workers while continuing to preserve the dignity of patients with limited mobility,” he added. — Christopher Cole (ccole@iwpnews.com)

 

OSHA Hits Companies With Large Fines Over Asbestos, Makes Cross-Agency Referrals

Aug 18, 2015   //   by .   //   Federal, News  //  No Comments
OSHA signaled a willingness to take tough enforcement action and widely publicize alleged willful infractions of the agency’s asbestos standards, hitting two Illinois construction companies and a manager with nearly $2 million in proposed fines, alleging numerous violations of the longstanding regulations.

One of the employers was also entered into OSHA’s Severe Violator Enforcement Program (SVEP), and the agency made cross-referrals of the company to the Environmental Protection Agency and Small Business Administration.

The investigation found Joseph Kehrer, Kehrer Brothers Construction and a Kehrer-affiliated company, D7 Roofing, which employed some of the workers, in alleged violation of numerous OSHA health standards related to asbestos, according to a statement Tuesday (Aug. 11) from OSHA.

Kehrer Brothers and Joseph Kehrer face $1,792,000 in penalties, with OSHA charging they willfully exposed at least eight workers to asbestos. Inspectors allege Kehrer and supervisors of the Albers, IL-based company told employees to remove asbestos-containing materials during renovation of a former school. OSHA placed Kehrer Brothers in SVEP along with issuing the citations.

OSHA suggests the alleged violations were exacerbated by the fact that many of the workers came to the United States to work for Kehrer under the H-2B visa program that allows companies to hire foreign workers temporarily. OSHA also alleges that the Kehrer management threatened some workers with termination if they spoke with OSHA inspectors.

“Kehrer Brothers Construction brought non-English speaking workers to the U.S. and knowingly exposed them to asbestos,” OSHA chief David Michaels said. “Kehrer also threatened to fire his employees if they spoke with our investigators. This is outrageous, illegal behavior. We at OSHA will do everything in our power to ensure this employer stops endangering his employees.”

OSHA on Aug. 10 cited Kehrer and Kehrer Brothers, alleging 16 egregious, nine willful and six serious violations. OSHA inspectors also claim Kehrer and the companies failed to warn employees, some of whom spoke only Spanish, of the danger even though the employers were aware of the asbestos hazard. They also failed to ensure that workers used appropriate work methods and respirators, and to train them about the hazards of working around asbestos, OSHA said.

The agency alleges that Kehrer and Kehrer Brothers Construction failed to: provide basic personal protective equipment such as hard hats, eyewear and protective clothing; create a decontamination area for employees to remove work clothing before leaving the work site; and use appropriate work methods to minimize asbestos exposure, such as removing tiles intact and using wet methods to keep asbestos fibers from becoming airborne.

OSHA said Kehrer Brothers Construction has an extensive prior history with OSHA and has been inspected 11 times since 2007.

OSHA also cited D7 Roofing for one serious and two willful alleged violations. The willful citations were for allegedly not training the workers or informing them about the presence of asbestos-containing material, and the serious citation was for allegedly failing to conduct inspections as required by law. Those proposed penalties total $147,000.

Joseph Kehrer could not be reached for comment Friday. A company principal at D7 Roofing also could not be reached. — Christopher Cole (ccole@iwpnews.com)

 

ExxonMobil Fire Leads To Heavy Cal/OSHA Fines, Deeper Scrutiny Of Refinery Safety

Aug 18, 2015   //   by .   //   Federal, News  //  No Comments
Cal/OSHA hit ExxonMobil with more than $566,000 in proposed fines stemming from the February blast at the company’s Torrance, CA, facility that injured four workers, an incident that sparked renewed national attention to refinery safety and that led the state to form a task force keyed to the complex issue.

The penalties sought by Cal/OSHA are based on 19 citations against ExxonMobil Refining & Supply Co. for alleged safety and health violations following a probe into the Feb. 18 explosion at the Torrance refinery — 18 of which were classified as serious due to a “realistic possibility of worker death or serious injury,” the agency said.

Six of the serious violations were also classified as willful because Cal/OSHA alleges that Exxon did not take action to eliminate known hazardous conditions at the refinery and intentionally failed to comply with state safety standards.

Cal/OSHA said the blast was the result of a hydrocarbon release from the refinery’s fluid catalytic cracker unit into its electrostatic precipitator, and that the hydrocarbons ignited inside the precipitator, causing the unit to explode. Eight workers were decontaminated, and four were sent to hospitals for treatment of minor injuries.

“Petroleum refineries have the responsibility to keep workers safe, and to also protect nearby communities and the environment,” Christine Baker, director of the Department of Industrial Relations, Cal/OSHA’s parent agency, in a statement Thursday (Aug. 13). “This investigation revealed severe lapses in Exxon’s safety protocols.”

It was not clear as of Monday whether ExxonMobil intended to contest the findings. “We are reviewing the citations to determine the appropriate administrative and legal next steps,” a spokesman for the company’s corporate office in Dallas told Inside OSHA Online in an email.

Among Cal/OSHA’s findings are that a 2007 safety review uncovered concerns about flammable vapor leakage in the precipitator and that management “knew of potential fire or explosion hazards as a result of the leakage, and failed to correct the danger.”

Exxon’s incident response team, which included ExxonMobil senior management, was aware of a leaking spent slide valve on the fluid catalytic cracker unit before the accident occurred, Cal/OSHA alleges, saying the unit had not been working properly for as many as nine years prior to the incident. “There was no functional pressure transmitter and as a result, ExxonMobil was unable to monitor hydrocarbon pressure buildup in the unit.”

Cal/OSHA further alleges that there was no written operating procedure for placing the unit in hot standby, which is a state between startup and shutdown that can be compared to working on an idling car.

The state agency said it issued an order prohibiting use of the unit on Feb. 18, and that order remains in effect “until ExxonMobil can demonstrate that the unit is safe to operate.”

Cal/OSHA has probed the Torrance facility twice in the last five years for accident-related incidents that resulted in serious workplace injuries in 2011. A refinery operator in March of that year was working on the fluid catalytic cracker unit, attempting to shut down a failed pump when a motor in the pump suffered mechanical failure and exploded, Cal/OSHA said, adding that the worker suffered a fractured jaw and lost six teeth. The other accident, in September 2011, did not occur in the fluid catalytic cracker unit. In those cases Cal/OSHA issued three serious and five general citations.

The state OSHA program noted that the Feb. 18 explosion, coupled with the August 2012 Chevron refinery fire in Richmond, has led to proposed improvements in petroleum refinery regulation. Proposed changes include damage mechanism reviews, employee participation, safeguard protection analysis and hazard control analysis.

“Cal/OSHA is working closely with other members of the Governor’s Interagency Refinery Task Force toward more protective refinery safety regulations,” said Cal/OSHA chief Juliann Sum. “Improved regulations and coordinated interagency inspections will reduce risks that can lead to serious accidents.”

The Governor’s Interagency Refinery Task Force, formed in the aftermath of the Chevron fire, includes participants from 13 agencies and departments — Christopher Cole (ccole@iwpnews.com)

 

Contractors To White House: Back Off On Orders Like ‘Safe Workplaces’ Screening

Aug 13, 2015   //   by .   //   Federal, News  //  No Comments
Several groups of federal contractors banded together early this month to tell the White House that President Obama should refrain in the “foreseeable future” from issuing executive orders that could negatively impact contractors, just as the administration rolls out a new policy requiring agencies to screen employers for OSHA and other labor violations.

Four associations representing defense, information technology and other industries with federal business tell the White House in an Aug. 3 letter that their members are taking a hit from the fallout of Obama’s orders. Their letter drew ridicule from worker safety and health activists who say the industry groups seems to believe they are entitled to federal contracts regardless of their labor law compliance records.

Federal contractors find that even when they support the policy goals of Obama’s EOs, often the long-term economic effects are damaging, according to the Aerospace Industries Association, National Defense Industrial Association, Professional Services Council and Information Technology Industry Council.

The groups tell top White House officials that since taking office, Obama has issued 12 EOs relevant to government contracting, resulting in 16 new regulations. “While we have openly expressed our support for some, suggested changes to others with which we agree on the intent, and raised major concerns about yet others, the net effect has been to significantly increase the costs of doing business with the government,” say the industry groups’ presidents in an Aug. 3 letter to presidential aides Denis McDonough and Valerie Jarrett.

Contractors’ most recent beef is with the Fair Pay and Safe Workplaces order issued in May, which is currently going through an implementation phase in which the Labor Department seeks comment on a policy to guide agencies in carrying out the order. At the same time rulemaking is under way to modify the Federal Acquisition Regulation to reflect Obama’s order. DOL has extended until Aug. 26 the comment deadline on the proposed policy. OSHA stakeholders in industry have complained that the EO is redundant with existing policy and could unfairly target businesses with still-unresolved OSHA citations.

The contractors’ lobby argues the rapid fire of new EOs has driven up costs and narrowed the field of competitors for federal jobs, to the detriment of agencies. “At a time when government budgets are under siege, cost efficiency is essential, and there is a broad agreement about the need for the government to open its aperture to enable access to the full marketplace of capabilities, this rapid growth in compliance requirements is becoming untenable,” the groups say. “Worse, while well intentioned, some of the EOs have required substantial investments in time and systems even though their actual impact is exceedingly minimal.” Some estimate that nearly 30 cents of every contract dollar goes toward compliance with unique government regulations, the letter says.

The groups “respectfully request that no further presidential directives primarily focused on government contractors be issued for the foreseeable future. The impacts, inefficiencies, and in many cases, unintended consequences are such that the interests of the American taxpayer are being significantly and negatively impacted.”

More than just existing contractors are affected by the Obama policies, they contend. “As efforts continue across the administration, and within our member companies, to expand the broad diversity of firms willing and able to support the government and to bring real innovation to bear for our nation, these unique and costly government-unique regulations simply raise an already substantial barrier between the commercial and government marketplaces.”

Worker safety and health activists have a vastly different take on whether Obama has used EOs too expansively, saying federal agencies need to know as much as possible about contract employers.

“It makes perfect sense that those receiving our taxpayer dollars for federal contracts would be held to a high standard of performance,” Lisa Gilbert, director, Public Citizen’s Congress Watch, tells Inside OSHA Online in an email. “The President has made the right call to use the powers vested in the executive branch to improve the contracting process, and there is still more that should be done.”

The Board of Certified Safety Professionals, in recent comments on the DOL implementing guidance, said it strongly agreed with the order’s premise “that those contractors who invest in their workers’ safety and maintain a fair and equitable workplace should not have to compete with contractors who offer slightly lower bids based on savings from skirting labor laws and then ultimately deliver poor performance to taxpayers.” — Christopher Cole (ccole@iwpnews.com)

 

OSHA Poised To Unveil Beryllium Proposed Rule, Likely Limited To General Industry

Aug 5, 2015   //   by .   //   Federal, News  //  No Comments
OSHA reportedly is set to release on Thursday a long-anticipated proposed rule tackling worker exposures to beryllium, a standard that sources tell Inside OSHA Online has been crafted only to apply to general industry and not to the construction and maritime sectors, where the metal has also been named as a workplace health concern.

A knowledgeable source also says the proposed new permissible exposure limit (PEL) on beryllium will probably be .2 micrograms m3/ug — representing a 90 percent reduction from the present level — in line with a longstanding joint union/industry model standard presented to OSHA.

General industry is the focus of the proposed standard but OSHA has also conducted regulatory flexibility analyses for maritime and construction, a source says, which provides the opportunity for comment on expanding the rule.

White House regulatory officials earlier this summer sent the proposed rule back to OSHA with unspecified revisions, giving OSHA the go-ahead to publish it. The agency on Wednesday advised reporters of a media call Thursday to announce a “new initiative intended to protect workers from illnesses, injuries and fatalities,” but without further details.

 

OSHA Pursues Tough Policy On ‘Willful’ Report Violations, Cites Maximum Penalty In TX Case

Aug 4, 2015   //   by .   //   Federal, News  //  No Comments
OSHA delivered a clear message to employers Wednesday (July 22) that it will aggressively enforce new worker hospitalization reporting rules by determining if employers willfully flouted the law and potentially hitting them with egregious citations, holding up a recent Texas case charging that a company deliberately dodged telling OSHA about a serious medical incident for several days, leading to the maximum proposed fine.

Agency officials blasted the safety record of Texas’ construction industry and paired the hospital reporting case — which involved citations over a worker allegedly not being provided proper safety equipment and falling 12 feet and suffering severe injury — with a separate probe into the serious injury of a Texas worker in a trench collapse. That resulted in willful citations over the alleged trench hazard. Both cases stemmed from serious workplace accidents in the Houston area.

OSHA also used one of the cases to highlight persistent concerns about temporary worker safety, claiming that the laborer provider for the site failed to conduct regular job site inspections. All told the cases amount to hundreds of thousands of dollars in proposed federal fines.

Compliance officers alleged in the hospitalization reporting probe that Cotton Commercial USA Inc. of Katy, TX, waited three days to report the injury of a temporary worker. The employee, despite asking for a safety harness, did not have fall protection on a roof and later fell 12 feet through the roof, resulting in his hospitalization with fractured arms and severe contusions, officials said. OSHA requires employers to report such incidents within 24 hours under a new reporting rule which also covers amputations and losses of an eye.

OSHA fined Cotton Commercial $362,500 for seven safety violations, including one willful and four willful egregious. Alleged violations on top of the incident reporting include failing to provide fall protection for four workers and not training employees in the use of fall protection and ladders. A Cotton Commercial executive could not be reached for comment on OSHA’s allegations Wednesday.

“Falls kill workers, but they are preventable,” OSHA chief David Michaels said in a statement. “Cotton Commercial denied its workers the safety equipment they are required to provide, and the company intentionally waited several days to report the incident and misled OSHA’s inspectors.”

The agency also issued a serious citation to the laborer provider, Gardia Construction, for allegedly failing to inspect the work site for fall hazards, with a proposed penalty of $4,900. OSHA said Gardia does not carry workers’ compensation insurance, exacerbating the plight of any injured workers.

Gardia’s phone number in Greta, LA, was busy and an official could not be reached.

OSHA asserted that staffing agencies and host employers are jointly responsible for maintaining a safe work environment for temporary workers. That includes ensuring that OSHA’s training, hazard communications and record-keeping requirements are fulfilled, and for construction workers, the responsibility includes ensuring that frequent and regular inspections of work sites are conducted, OSHA maintained.

“Cotton Commercial was well aware of how to prevent safety hazard and, in fact, on the following day Cotton made sure all workers were provided with the required safety equipment,” OSHA Regional Administrator John Hermanson said. “It shouldn’t have to take a serious injury for a company to comply with the law.”

Michaels told reporters in a conference call Wednesday that the Cotton Commercial citation demonstrates OSHA’s determination to fully enforce the new hospitalization reporting requirements. The agency just issued a “willful” citation under the new reporting requirements to another employer and continues to investigate compliance with the rule in other incidents, he said.

OSHA simultaneously widely publicized a trench collapse case in the Houston area and suggested it and the other case seemed symptomatic of a larger safety culture problem in the Texas construction sector. More construction workers die in Texas than in any other state, he said, though fortunately in the immediately cited cases they survived.

OSHA’s citations against Hassell Construction Co. Inc., with nearly $424,000 in proposed fines, resulted from an incident in which OSHA says a worker was buried in an 8-foot trench below ground. Co-workers came to his rescue, digging him out with their bare hands, and moments after they pulled the injured man to safety, the unprotected trench collapsed again, OSHA said. His injuries were serious and led to hospitalization.

OSHA claims the man’s Houston-area employer, Hassell Construction, knew the Richmond, TX, excavation site was dangerous, but failed to protect workers. The agency cited Hassell Construction for 16 safety violations, including six egregious willful violations for failing to protect workers inside an excavation from a cave-in.

Further OSHA has placed the company in its Severe Violator Enforcement Program, which concentrates resources on inspecting employers that OSHA believes have demonstrated indifference towards creating a safe and healthy workplace by committing willful or repeated violations, and/or failing to abate known hazards. The program mandates follow-up inspections to ensure compliance with the law.

“For more than 2,500 years, man has known how to prevent deadly trench collapses. It is absolutely unacceptable that employers continue to endanger the lives of workers in trenches,” Michaels said. “An employer is responsible for providing a workplace safe from hazards. Hassell Construction failed to do that in this case.”

An official with Hassell Construction told Inside OSHA Online Wednesday that company will be going to informal conference with OSHA but would not yet talk about the citations. — Christopher Cole (ccole@iwpnews.com)

 

 

OSHA Planned Rule Aims To Surmount Court Decision Over Time Limits On Recordkeeping Citations

Aug 4, 2015   //   by .   //   Federal, News  //  No Comments
OSHA plans through a newly proposed rule — which sources say will almost certainly be disputed — to overcome a key federal appeals court decision three years ago that killed a longtime agency policy stance that inaccurate OSHA logs continued to violate recordkeeping regulations every day the records remained erroneous, continuing to trigger the six-month time limit on potential citations against the employer.

Agency officials said Tuesday the proposed rule clarifies “the ongoing obligation to make and maintain accurate records of work-related injuries and illnesses.” The rule, set for publication in Wednesday’s Federal Register, has been on the rulemaking agenda ever since the controversial Volks decision on recordkeeping time limits. OSHA losing that case in the U.S. Court of Appeals for the D.C. Circuit meant throwing out recordkeeping citations dated six months or later than the alleged instance of a recordkeeping violation — partially hamstringing its power to widely enforce the rule.

OSHA says the newly proposed rule will clarify the employer’s obligation to maintain an accurate record of each recordable injury and illness throughout the five-year period during which the employer is required to keep the records. OSHA chief David Michaels argued in a press release Tuesday that work injury data are more meaningful than just collected information under the law.

“Accurate records are not simply paperwork, but have an important, in fact life-saving purpose,” he said. “They will enable employers, employees, researchers and the government to identify and eliminate the most serious workplace hazards — ones that have already caused injuries and illnesses to occur.”

OSHA back when the Volks decision came down decried the ruling as contrary to the purpose of the statute and regulations designed to ensure accurate records, and pledged in the regulatory agenda to have it reversed. OSHA explicitly named the decision, formally known as AKM LLC v. Secretary of Labor, as reasoning for the proposed rule issued this week. But the agency made clear it believes the proposed rule adds no new compliance obligations and “would not require employers to make records of any injuries or illnesses for which records are not already required.”

OSHA does not classify the rule as economically significant and the proposal did not apparently undergo the extensive White House budget office review required for major rules.
The regulatory agenda indicates that the Volks decision directly spurred the rulemaking, as OSHA wished to ensure clarity under the recordkeeping regulations of its position that “[t]he duty to make and maintain an accurate record of an injury or illness continues for as long as the employer must keep and make available records for the year in which the injury or illness occurred. The duty does not expire if the employer fails to create the necessary records when first required to do so.” By contrast the appeals court panel found that a failure to accurately record an OSHA-log incident represented a discrete event that solely triggered the tolling on the statute of limitations (see related story). The court decision reversed a split ruling by the Occupational Safety and Health Review Commission.

But OSHA’s move to surmount the adverse appeals court decision through rulemaking will likely land the issue back in court, partly because industry legal counsel has argued that OSHA cannot through new regulations overturn the court’s interpretation of statute, which was effectively what Volks did. Employers can be expected to contest the time limits rule if OSHA eventually promulgates it, an industry attorney predicts. “There will eventually be a court challenge of this, just not immediately.”

The attorney who represented the employer in Volks, Art Sapper of McDermott Will & Emery, tells Inside OSHA Online that “OSHA cannot change the statute of limitations, which requires that a citation be issued within six months of the ‘occurrence’ of a violation.” Sapper notes that the court stated that, “Like the Supreme Court, we think the word ‘occurrence’ clearly refers to a discrete antecedent event — something that ‘happened’ or ‘came to pass’ ‘in the past.'” But he notes that under the newly proposed rule, citations could be issued more than six months after the last occurrence that triggered the duty to record. He also observed that much of OSHA’s preamble for the proposed rule was lifted from its brief to the D.C. Circuit, including statement that “concerns about stale claims have little bearing on OSHA recordkeeping cases” — a notion Sapper called “preposterous.”

“In the Volks case, one of the recordkeepers had died by the time OSHA issued its citation,” he says. “How much staler can you get than that?”

Public comments on the proposed rule are due Sept. 27. — Christopher Cole (ccole@iwpnews.com)

 

 

OSHA Warns Employers Of Potential Eyewash Station Water Contamination

Aug 4, 2015   //   by .   //   Federal, News  //  No Comments
OSHA is lodging concern about the safety of water used in emergency eyewash stations, noting the possibility of numerous infections that can result from using contaminated water and raising the possibility that the issue will be increasingly scrutinized by compliance officers, and specifically citing voluntary industry standards as the most effective means of reducing the hazards.

The agency just released an information sheet dedicated to concerns about contaminated eyewashes, citing specific organisms including Acanthamoeba, Pseudomonas and Legionella found in stagnant or untreated water and known to cause infections.

OSHA recommends employers follow the American National Standard Institute’s (ANSI) standard Z358.1-2014 for maintaining eyewash equipment. The information sheet, however, makes clear in a disclaimer that the guidelines neither create any new legal obligations on employers nor constitute new regulations or standards.

An industry legal source notes, however, that OSHA has previously used ANSI standards as a basis for citations, making the references in the new guidance document significant.

The ANSI standard says plumbed systems need to be activated once a week for at least 15 minutes to reduce microbial contamination, OSHA notes, while self-contained eyewash units “must be maintained and employers should consult the manufacturer’s instructions for maintenance procedures. This includes flushing the system and using only solutions appropriate for flushing eyes.”

Eyewash stations are intended to mitigate eye injuries when control methods do not prevent exposure to a physical or chemical irritant or a biological agent, OSHA notes. The ANSI standard for eyewashes specifies that eyewashes must be capable of delivering tepid flushing fluid to the eyes not less than 1.5 liters per minute (0.4 gpm) for 15 minutes after a single movement and subsequent hands-free operation.

“Whether the eyewash station is permanently connected to a source of potable water (i.e., plumbed) or has self-contained flushing fluid, improper maintenance may present health hazards that can worsen or cause additional damage to a worker’s eye,” OSHA says.

The agency notes that the issue applies to several standards, as eyewash facilities are required in workplaces where corrosive chemicals are used (29 CFR 1910.151(c)), as well as in HIV and HBV research laboratories and production facilities (1910.1030(e) (3)(i)), and where there is any possibility that an employee’s eyes may be splashed with solutions containing 0.1 percent or greater formaldehyde (1910.1048(i)(3)).

“They may also be found in research and production laboratories, in medical facilities and other workplaces with materials that may cause injury to or infection of the eyes,” according to OSHA, which cautions that when a worker uses an eyewash station that is not maintained, organisms in the water may come into contact with the eye, skin, or may be inhaled. “Workers using eyewash stations after exposure to a hazardous chemical or material may have eye injuries that make the eye more susceptible to infection.”

“Also, workers with skin damage or compromised immune systems (e.g., transplant recovery, cancer, lupus) are at increased risk for developing illnesses from contaminated water,” OSHA says. “Early diagnosis is important to prevent infections from causing serious health effects, including permanent vision loss and severe lung diseases (e.g., pneumonia).” — Christopher Cole (ccole@iwpnews.com)

 

OSHA Backtracks On Medical Tape As Medical Treatment After Pressure From Sports Trainers

Jul 22, 2015   //   by .   //   Federal, News  //  No Comments
OSHA has reversed an earlier policy that classified the use of kinesiology tape as an OSHA recordable medical treatment, deciding instead that it qualifies as first aid — backing down after agreeing to the sports training industry’s request to review information about how the medical tape is typically used. The interpretation makes a policy determination as to the use of elastic bandages and similar products as qualifying only as first aid.

The agency issued a July 6 interpretation letter to the National Athletic Trainers’ Association (NATA) about the issue in response to a January request from the trade group for officials to reconsider their stance. “They were bombarded with information from the trainers association [showing that] it really is not medical treatment,” a source familiar with the issue says.

NATA had asked OSHA to revisit its stance on the recording requirement for kinesiology tape use under 9 CFR 1904 — Recording and Reporting Occupational Injuries and Illnesses.

“As requested, OSHA has reevaluated its classification of the application of kinesiology tape as constituting medical treatment. OSHA reviewed information associated with such tape from patent applications, from relevant instructional materials and directions for when and how to use it, from evaluations and descriptive experiences involving recommended uses and their efficacy, from assessments regarding the nature and mechanisms of its effects, and from reviews of the extent and nature of any medicinal, neurological, and physical properties and impacts,” the agency said.

The agency cited 29 CFR 1904.7 as first aid treatment including “any non-rigid means of support, such as elastic bandages, wraps, non-rigid back belts, etc.” The use of kinesiology tape and other types of elastic taping is included within the definition of first aid treatment, and thus the use of such tape alone would not be considered medical treatment.”

An industry attorney, writing online in The National Law Review, noted that the July 6 interpretation is a reversal of OSHA policy. OSHA in late 2014 issued an interpretation letter which stated that the use of kinesiology tape is considered medical treatment for OSHA recordkeeping purposes and is, therefore, recordable when used to treat a work-related injury, according to Tressi Cordaro, shareholder in the Washington, DC, region office of Jackson Lewis.

OSHA in the earlier December 2014 interpretation responded to an inquiry on the subject by stating that “[w]e consulted with physicians in OSHA’s Office of Occupational Medicine and they inform us that kinesiology taping is designed to relieve pain through physical and neurological mechanisms. The lifting action of the tape purportedly relieves pressure on pain receptors directly under the skin, allowing for relief from acute injuries.”

“The use of kinesiology tape is akin to physical therapy and is considered medical treatment beyond first aid for OSHA recordkeeping purposes,” the agency said at the time. — Christopher Cole (ccole@iwpnews.com)

 

OSHA Clarifies Several Aspects Of Hazcom Enforcement, But Policy Details Draw Concern

Jul 22, 2015   //   by .   //   Federal, News  //  No Comments
OSHA’s newly produced enforcement policy for the 2012 update to hazard communication (hazcom) standards makes several strides in clarifying for both field staff and affected employers the circumstances under which alleged violations of the rule could be cited, sources say, but industries are concerned about detailed instructions in the guidance and what they consider new, unforeseen paperwork and compliance burdens.

Stakeholders and hazcom experts began picking apart the field guidance this week after OSHA issued the policy on Monday, identifying several areas of additional detail that stand out: requirements for documentation of good-faith compliance efforts; written hazcom program instructions; and procedures for classifying chemicals, to name a few.

Knowledgeable sources say some components of the field instruction, because of their specificity, are fraught with the potential for citations against employers under the 2012 rule, which was designed to bring U.S. hazcom requirements in line with the United-Nations-devised Globally Harmonized System of classifying and labeling chemicals. For example, one source says documentation requirements explained in the instruction effectively put in place requirements that many employers may have inadvertently neglected over time.

OSHA says significant parts of the instruction, which cancels several older policies, include:

  • Implementing the rule’s changes in “hazard determination” to the specific requirements for hazard classification of chemicals, standardizing of label elements for containers of hazardous chemicals, and specifying the format and required content for safety data sheets (SDS).
  • Covering how the revised standard is enforced during its transition period and after the standard is fully implemented.
  • Requiring evaluation of chemicals in accordance with specific guidance outlined in Appendices A and B of the standard, with hazard classification resulting in the specification of pictograms, signal word, hazard statements, and precautionary statements that must be included on the labels.

One industry attorney tells Inside OSHA Online the detailed written program compliance to be sought by inspectors presents a substantial paperwork burden not clearly specified in the standard. The attorney also argues that a section on demonstration of good faith and the documentation required thereof presents similar problems. “There’s a lot more detail on what they mean by documenting good-faith efforts that wasn’t contemplated by anyone when they wrote the standard, and it’s going to be a lot more expensive … [also] it’s a little late to be talking about having this kind of documentation.”

“The written program instructions are far more detailed than what is in the standard,” the lawyer says. “I don’t see how anybody with a straight face at OSHA came up with the costs that they have.” The source predicts that eventually citations will come down that are based on some of the specifics within the enforcement policy, “but it will take a while I think to get there.”

The agency sets out numerous requirements compliance officers should evaluate in employers’ written hazcom programs to determine compliance.

Inspection guidelines say inspectors must review the written program to ascertain whether all applicable requirements of the standard’s paragraph (e), (f), (g), and (h) are covered in the written program and have been implemented in the workplace. The written program must address chemical inventory, which must have a product identifier for each chemical known to be present that aligns with the SDS and label, and which can be for the entire facility or for individual work areas. The inventory must include all chemicals present (even if the chemicals are stored/not in use).

The program must cover the methods the employer will use to inform employees of the hazards in non-routine tasks, and the hazards associated with chemicals contained in unlabeled pipes in their work areas, OSHA says.

Programs for multi-employer work sites must include method(s) to provide the other employers on-site access to SDS for each hazardous chemical the other employer(s)’ employees may be exposed; method(s) to inform other employers about any necessary precautionary measures to protect employees; and how to inform other employer(s) about the labeling system used.

The written program must address its own availability to employees, employee representatives, NIOSH and OSHA representatives upon request. The guidance further requires inspectors to ensure that programs address labels and other forms of warning, which must include designation of the person(s) responsible for labeling on shipped containers; designation of the person(s) responsible for workplace labeling; description of labeling system(s) used; description of alternative to labeling for workplace containers, where applicable; and procedures to review and update label information when necessary (for employer’s workplace labeling and for shipped container labels).

Written programs, according to the guidance, must include designation of the person(s) responsible for obtaining/maintaining the SDS; how the data sheets are to be maintained; procedures on how to retrieve SDS electronically, including backup systems to be used in the event of failure of the electronic equipment, and how employees obtain access to the SDS. The programs must address procedures to follow if the SDS is not received at the time of the first shipment; if it is suspected that the SDS is not appropriate (e.g., missing hazards); to determine if the SDS is current; and for chemical manufacturers or importers, procedures for updating the SDS when new and significant health information are found.

Programs must also address designation of the person responsible for conducting the training; how the training is to be conducted (e.g., written, visual presentation using slides, verbal); the required elements of the training program.; the the duties in (h)(1) through (h)(3); procedures to train new employees at the time of their initial assignment and to train employees when a new hazard is introduced into the workplace; and procedures to train employees when they are potentially exposed to chemicals used by other employers on multi-employer work sites.

An industry attorney tells Inside OSHA Online that in addition to new burdens potentially imposed by the detailed enforcement policies, OSHA’s instruction also wades into areas that clearly reflect current enforcement priorities not tied directly to ensuring compliance with the new hazcom standard. A key example is language in the document covering temporary workers, a broad area that is an increasing enforcement emphasis for OSHA.

“They are clearly encompassing their enforcement initiatives into this directive,” says the attorney, Tressi Cordaro, shareholder in Jackson Lewis. Enforcing requirements on staffing companies to train employees on protecting themselves from chemical hazards they could encounter at the host employer site is an obvious example of OSHA pushing its policy agenda through enforcement of a standard without a legal basis in the standard and statute, the attorney contends, and also circumvents the regulatory process normally required of OSHA. “That is rulemaking without notice and comment.”

One occupational safety and health expert tells Inside OSHA Online, however, that it appears OSHA is justified in wrapping issues such as multi-employer sites and staffing firm employee training into hazcom enforcement, because those are central concerns for thorough and uniform implementation of the rule.

The enforcement guidance appears to make several specific concerns clearer for compliance officers and, in turn, easier for employers in affected industries to comply.

Cordaro notes that OSHA did provide useful clarification on some issues, such as employer reliance on Department of Transportation labeling for shipping of hazardous chemicals. “There’s some value in this directive. OSHA gave some clarification to DOT labeling,” she says. “That’s guidance that was needed in the industry.” — Christopher Cole (ccole@iwpnews.com)

 

Cal/OSHA Chief: State OSHA’s Budget, Staffing Increases Should Ameliorate Feds’ Concerns

Jul 14, 2015   //   by .   //   Federal, News  //  No Comments
California’s OSHA program will continue beefing up staffing levels and increasing overall inspection numbers, leveraging a 10 percent enforcement funding spike in the state’s newly passed budget, in what Cal/OSHA chief Juliann Sum suggests could ameliorate concerns at the federal level about the state agency’s pace of investigations.

Sum tells Inside OSHA Online that newly allocated resources are helping Cal/OSHA improve the program after a crippling state budget crisis that reduced its capacity to carry out inspections. California’s state Senate in June unanimously confirmed Sum as Cal/OSHA’s administrator after she had served almost two years as acting chief.

Her remarks come as federal OSHA sharply criticizes some aspects of how the bellwether state plan operated over several years up to 2014, with OSHA reaching a variety of negative conclusions after investigating a Complaint About State Program Administration (CASPA) filed last year by a public employees interest group in Washington. The federal agency’s findings require a formal response in 30 days from Cal/OSHA, which Sum says will be forthcoming.

Sum says work is ongoing to ramp up inspections and make other adjustments that bear on federal OSHA’s complaints. “We have many mandates. We’re always looking for ways to strengthen our program,” she says. “We’ve been making a lot of changes really on a daily basis. A lot of those changes are directly related to the concerns … from federal OSHA.” Among the remedies taking shape now, Sum notes, is that Cal/OSHA will create 36 new enforcement positions among more than 70 additional full-time equivalents in the next fiscal year.

OSHA’s conclusions about the state program — set out in a formal June 26 response to the complainants, Public Employees for Environmental Responsibility (PEER) — include that the probe “substantiated most of the allegations raised through this CASPA” and that OSHA has identified Cal/OSHA staffing levels as an “issue of major concern” in federal audit reports for both fiscal 2012 and 2013.

“OSHA believes that inadequate staffing levels can at least partially account for some of the deficiencies identified in this report,” the letter says, noting that the state was placed under a hiring freeze in fiscal 2011 that was not lifted until July 2013. “OSHA understands that recovering from staffing adjustments can take time, and has also offered policy solutions for the identified deficiencies to help meet the needs of workers in California. This report underscores the need for Cal/OSHA to move as quickly as possible to improve staffing levels.”

Federal OSHA alludes to the “at least as effective” requirement for state plans that especially in recent years has come under deep scrutiny as to its meaning, though it does not talk about specific actions against the California plan if identified or alleged problems continue. “If deficiencies are discovered in a state program as a result of an evaluation such as an onsite review or the investigation of a CASPA, OSHA identifies such deficiencies to the State Plan and the State Plan is required to remedy those deficiencies.”

The federal agency asks for a response within 30 days and says any new or revised procedures should be submitted to OSHA as a state plan change.

Several key recommendations are contained in the CASPA report based on what the probe found. “In order to increase the number of inspections focused on dangerous workplaces, OSHA recommends that Cal/OSHA review existing policies and procedures to identify and implement mechanisms to increase the percentage of programmed inspections targeting high hazard worksites.”

That is based on a finding that Cal/OSHA performs a much lower percentage of programmed inspections (21.6 percent) than OSHA (56.6 percent). How the federal and state programs identify high-hazard workplaces and use programmed inspection resources has long been in debate.

OSHA also recommends that Cal/OSHA either comply with its own policies and procedures for determining when follow-up inspections should be conducted or, with guidance from OSHA, consider revising the state labor code to establish a follow-up inspection policy that is “both meaningful and achievable.” That was because OSHA found that the California program failed to adhere to its documented follow-up policy.

A third recommendation is that Cal/OSHA take action to finish investigations more quickly by developing and enforcing policies and procedures that will allow for improved citation lapse times, and work with district and regional managers to reach the desired outcome. OSHA wants the program to “take immediate steps” to address the issue as it has been identified several times before. OSHA found that the time it takes Cal/OSHA to issue citations is 69 percent longer than OSHA for safety inspections and 33 percent longer for health inspections.

Federal OSHA also recommends the state develop or enforce policies and procedures that will result in Cal/OSHA responding more quickly to complaints, especially those alleging serious hazards, also saying that issue has been identified several times and urging immediate action.

In fiscal 2013, the probe found, Cal/OSHA averaged almost four working days to start investigations for serious hazard allegations and that the longest time between receiving a complaint and starting an inspection was 106 days. The average time to begin investigations for complaints alleging non-serious hazards was 15.25 days, with the longest period being 300 days, according to the letter.

Not all of PEER’s complaints were found as meriting a recommendation. Federal OSHA did not make one with respect to an allegation that Cal/OSHA has failed to conduct an adequate number of health inspections. OSHA says while the overall number of enforcement inspections has decreased from fiscal 2012 to fiscal 2014, the percent of health inspections (22.3 percent) conducted by the state program actually exceeded the federal proportion (18.5 percent).

Cal/OSHA’s recently enacted budget increase will go toward tackling many of the problems detailed in the federal report, according to Sum. The state program chief notes that the 36 new enforcement positions will be targeted to both regular and high-hazard enforcement — with the latter a key issue that the CASPA report identifies. The state plan has also been filling many of its vacancies since the budget crisis dissipated and the hiring ban was lifted, she points out. Additional funds will also pay for the hiring of new legal staff, elevator inspections (which are not considered part of enforcement) and the occupational health unit, she notes.

“We feel very strongly about our mission and we want to do the best job possible,” she says. “We have been making measurable improvements in these areas. I don’t disagree that we should always be improving.” Sum says the state program “would like to collaborate” with federal OSHA on concerns outlined in the report.

PEER considered the June 26 letter as confirming many of the problems detailed in the organization’s February 2014 formal complaint about Cal/OSHA, saying in a statement that the report found “gaping holes” in the state program. Jeff Ruch, PEER executive director, maintained that California workers “are more at risk than those in other states and have less protection on the job now than at any other time in a generation.”

“This is a failing grade that Cal/OSHA cannot ignore if it wants to keeps its doors open,” he said. — Christopher Cole (ccole@iwpnews.com)

 

OSHA Extends Confined Spaces In Construction Enforcement Date For ‘Good Faith’ Employers

Jul 10, 2015   //   by .   //   Federal, News  //  No Comments
OSHA has decided to delay full enforcement of the agency’s recently issued confined spaces in construction rule, giving employers that are making “good faith” compliance efforts an extra 60 days before citing them under the new standard, in a partial accommodation of industry’s request for more time to comply.

The new deadline for employers OSHA deems as trying diligently to meet the new requirements is Oct. 2, pushed back from Aug. 3, according to an internal memo obtained by Inside OSHA Online. OSHA will still consider the rule effective next month, but has devised a new policy on what circumstances call for immediate citations.

Employers during that period will nonetheless be expected to have trained employees as required by the new subpart, or meet the confined spaces training requirements of the older general construction code.

Several building sector trade groups had sought an extension of the overall effective date, citing burdens and the scope of the rule, which was issued in May. The rule generally layers confined space requirements already applicable to general industry onto construction work sites, though some aspects of the new rule differ significantly from the older one.

OSHA’s move to give qualifying employers more time to meet the construction mandates occurs as, separately, a Texas home builders group sues the agency in the Fifth Circuit Court of Appeals over the rule, calling it “arbitrary and capricious, not supported by substantial evidence in the record considered as a whole, an abuse of discretion, or otherwise not in accordance with law”.

The group of building trade groups asking for an extension of the effective date told OSHA in a June letter that “due to the scope of this new rule and the wide ranging impact it will have on the entire construction industry, we believe stakeholders will need additional time to fully review and understand the requirements, and develop the resources needed to properly comply with the standard.”

OSHA initially gave employers 90 days to begin complying with the regulations, but a Thursday (July 8) memo from the national office delays the full enforcement date, noting that industry requests “have indicated a need for additional time for training and the acquisition of equipment necessary to comply with the new standard.”

Officials said they will not delay the effective date, but instead will postpone full enforcement of the rule where warranted. “During this 60-day period, OSHA will not issue citations to an employer making good faith efforts to comply [italics in memo] with the new standard, as long as the employer is in compliance with either the training requirements of the new standard” found at 29 CFR 1926.1207, or the training requirements found at former 29 CFR 1926.21(b)(6)(i).

Several factors come into play as OSHA exercises the enforcement discretion, the memo says:

  • “If the employer has not trained its employees as required under the new standard, whether the employer has scheduled such training.”
  • “If the employer does not have the equipment required for compliance with the new standard, including personal protective equipment, whether the employer has ordered or otherwise arranged to obtain such equipment required for compliance and is taking alternative measures to protect employees from confined space hazards.”
  • “Whether the employer has engaged in any additional efforts to educate workers about confined space hazards and protect workers from those hazards.”
  • — Christopher Cole (ccole@iwpnews.com)

 

OSHA Wields Corporate Settlement Talks To Tamp Down Workplace Violence Risks

Jul 8, 2015   //   by .   //   Federal, News  //  No Comments
OSHA has reached a milestone settlement with a corporate health care provider that gives the agency a foothold to proactively address workplace violence risks, using its negotiating powers to take on an issue that officials signal will increasingly become a federal enforcement priority in health care.

Agency leaders have indicated that OSHA will use whatever creative means possible to compel employers to adopt violence control plans even without a standard that would set out specific requirements. Workplace violence citations are generally brought under the OSH Act general duty clause, often with OSHA then conferring with the employers to negotiate down the fines in return for beefed-up safety measures.

OSHA reached a settlement with Corizon Health Inc., which provides medical, dental and mental-health services to inmates at correctional facilities, on implementing changes to reduce workplace violence hazards for employees at its locations. One of the company’s most well-known work sites is the Rikers Island facility in New York.

Officials last year cited Corizon for what they charged was a failure to develop and implement an effective program to prevent workplace violence for its Rikers Island employees. Corizon in return for the settlement withdrew its contest of the citations. The company will also have to name a top-level official to oversee compliance with the settlement.

An OSHA solicitor last week called the agreement “significant” given Corizon’s dominant position in the correctional health care industry. “It has the potential to improve how workplace violence issues are addressed by employers throughout the industry,” said Jeffrey Rogoff, the department’s regional solicitor of labor in New York, in a July 1 statement.

“While Corizon is taking corrective action at Rikers Island, it will expand that effort and change its practices at hundreds of locations to enhance safety for countless employees,” said Robert Kulick, OSHA’s regional administrator in New York.

Corizon will have to adopt comprehensive and specific abatement measures at its facilities under the agreement, modeled after workplace violence guidelines already developed by OSHA. Each Corizon location will develop, in consultation with employees and unions, a workplace violence prevention policy; an incident reporting system; enhanced recordkeeping procedures; a workplace violence hazard assessment and prevention program; and employee training.

OSHA noted that the settlement also requires Corizon to appoint a senior official to oversee compliance with the settlement agreement and the OSH Act; allow OSHA to conduct inspections to monitor compliance; and seek greater coordination with local departments of correction or similar agencies that work with Corizon facilities.

Also the company will pay a fine of $38,000.

Corizon officials could not be reached for comment on the settlement.

Occupational safety and health experts say the profile of workplace violence is growing and that OSHA has made clear that even in the absence of a standard it will enforce against such risks. The issue’s increasing prominence is plainly on display not just at the national level, but also in several states that have considered or enacted legislation specifically aimed at violence against workers, notes Aaron Trippler, director of government affairs for the American Industrial Hygiene Association.

“There’s been a lot of legislation issued in states on workplace violence,” says Trippler, who keeps track of occupational health bills and OSHA activity across the country. “It keeps becoming more and more important. A lot of bills are being introduced.”

Federal OSHA has also been working on initiatives that can be used even if a federal rulemaking never occurs, Trippler points out, saying OSHA seems “creative at going in and looking at the health care industry” on a wide array of issues — demonstrated just recently by a push for safe patient handling to prevent ergonomic hazards. — Christopher Cole (ccole@iwpnews.com)

 

OSHA Seeks White House Approval Of Final Rule Tackling Slips, Trips And Falls

Jul 8, 2015   //   by .   //   Federal, News  //  No Comments
OSHA is asking the White House for the go-ahead to finish a final rule aimed at heading off workplace hazards from slips, trips and falls, taking a crucial step in a 25-year regulatory effort — and moving ahead on a rule the Obama administration has made clear it wants to issue this year despite a string of delays.

The Office of Management and Budget (OMB) indicates that it received the rule to begin reviewing it, potentially the last stage in the process before the safety agency can move toward final publication. OSHA has pegged August as the target time frame for issuing the rule. OSHA officials had been analyzing comments since August 2011 after proposing a second version of the rule in 2010.

OSHA’s planned regulations, known formally as the walking-working surfaces and personal fall protection systems rule, would put a host of new requirements in the regulatory code to prevent slip, trip, and fall hazards and establish requirements for fall arrest systems. OSHA has noted in its regulatory blueprint that slips, trips, and falls are among the leading causes of work-related injuries and fatalities.

OSHA first published an earlier iteration of the proposed rule in 1990 under the George H.W. Bush administration. OSHA notes, however, that since that time, new technologies and procedures have become available to protect employees from such dangers. The intent of the rule is to update protections to reflect current technology.

The rule has been through a rocky history, however, with stakeholder feedback consistently forcing regulators to go back to the drawing board. It took some 13 years since the first proposed rule came out in 1990 for OSHA to reopen the rulemaking 12 years ago.

“Based on comments received on the 2003 notice, OSHA determined that the rule proposed in 1990 was out of date and did not reflect current industry practice or technology,” OSHA states in an explanation of the rule’s history. The agency published the second proposed rule in May 2010, which officials say reflected current information and increased consistency with other OSHA standards. Hearings took place in 2011.

OSHA’s move to get OMB’s Office of Information and Regulatory Affairs to review the standard means that once administration officials sign off on the rule it could be published shortly in the Federal Register. A new walking-working surfaces standard could yet be a long way off, however, as it remains unclear whether the regulatory gatekeepers’ office will return the rule with any changes within a standard three-month window.

OSHA Deputy Assistant Secretary Jordan Barab told Inside OSHA Online late last year the walking-working surfaces rule was among several major regulations the agency was fully intent on completing in the Obama administration. — Christopher Cole (ccole@iwpnews.com)

 

New Hospital Safety Inspection Emphases Stem From Longtime Pressure From Advocates

Jun 29, 2015   //   by .   //   Federal, News  //  No Comments
OSHA’s newly rolled-out areas of emphasis for compliance officers conducting hospital and nursing home inspections — focused intently on ergonomic issues, bloodborne pathogens, workplace violence, tuberculosis and slips, trips and falls — comes after lengthy and intense pressure by health care worker advocates, particularly the nurses’ lobby, on the agency to increase inspectors’ concentration on inpatient facilities, Washington sources say.

OSHA leaders unveiled the changes last week in an announcement that grabbed the attention of industry representatives and attorneys engaged in OSHA law, as it focuses on several emphases for which the agency lacks specific standards but has increasingly tried to address under the Obama administration.

Worker safety advocates immediately lauded the initiative as going after a wide swath of problems in inpatient health care that they consider largely neglected over the years. Safe patient handling, the issue OSHA seeks to address by adding an ergonomics emphasis to the inspection regime, has especially come to the forefront in recent years.

Bloodborne pathogens are the subject of a longstanding specific rule but experts note that the issue has not always been a focus within inpatient care centers. A union source also points out that data collected under inspections focused on bloodborne pathogens and disease transmission in general under the directive could also be used to help under-gird OSHA’s plans for an infectious diseases rule.

Other issues broached by the policy directive, perhaps most notably musculoskeletal disorders, are not the subject of a standard and have been longstanding sources of controversy. Industry experts believe the agency has become more emboldened to use the OSH Act general duty clause in cases where it believes ergonomic hazards have gone unaddressed, or where employers should have known and taken steps to reduce the dangers of workplace violence.

Experts say what is notable about the new initiative is that even though some standards, including the one covering bloodborne pathogens, have long been in place and employers are expected to comply, OSHA is now specifically targeting inpatient facilities under the policy. One source says organized nursing labor has for years been putting pressure on OSHA to take some kind of formal action to begin tackling the hazards, with nurses typically viewed as the most vulnerable worker population to the identified concerns. Also last year’s Ebola scare in the United States gave nurses a louder voice and put much greater impetus on OSHA to elevate enforcement to prevent infectious disease transmission in hospitals, an attorney observes.

“Many people have asked me why OSHA is doing this now,” says Valerie Butera, an attorney with Epstein Becker Green, in an email. “The Ebola crisis late last year gave nurses and nursing unions a platform with OSHA that enabled them to point out a great many workplace hazards in healthcare, and OSHA listened.”

“I believe this, combined with the liberal use of the general duty clause by OSHA under the Obama administration, combined to cause OSHA to target inpatient healthcare facilities,” she says. “What is remarkable about this is that OSHA is redirecting substantial resources to target enforcement at inpatient care facilities, which have not been subject to much OSHA scrutiny in the past. And OSHA is not just focused on bloodborne pathogens anymore — in fact, I suspect that musculoskeletal injuries will lead to the greatest number of citations in this initiative.”

Developments including OSHA’s successful exercise of the general duty clause in high-profile cases such as the Walmart trampling case have motivated OSHA officials to use the statutory section more aggressively, and they are feeling more confident about it, she argues.

A different lawyer calls the policy with respect to musculoskeletal disorders “ridiculous,” telling Inside OSHA Online in an email that “OSHA is prohibited from issuing an ergonomics rule without Congressional authorization, and yet it openly announces that it will issue citations to employers that do not comply with its guidance.”

OSHA cites labor statistics as reasoning for the new inspection emphases and notes that similar issues were recently targeted under the recently concluded National Emphasis Program for nursing and residential care facilities. “These focus hazards will be addressed in addition to other hazards that may be the subject of the inspection or brought to the attention of the compliance officer during the inspection,” OSHA says. “The goal of this policy is to significantly reduce overexposures to these hazards through a combination of enforcement, compliance assistance, and outreach.”

The agency states that the Bureau of Labor Statistics and OSHA’s inspection history with the emphasis program “have shown that inpatient healthcare settings consistently have exposures to the safety and health hazards” addressed by the new enforcement memo.

OSHA says with regard to musculoskeletal disorders, between April 5, 2012 and April 5, 2015, OSHA conducted 1,100 inspections of nursing and residential care facilities under the emphasis program. “Ergonomic stressors were evaluated in 596 of these inspections, which generated 192 ergonomic hazard alert letters … to employers and 11 citations of OSHA’s general duty clause for hazardous ergonomic conditions.”

Union officials characterize OSHA’s involvement in the concerns at inpatient facilities as long overdue — but still not enough. “It’s a step in the right direction,” says an occupational safety and health staffer for one union affected by the issue. However, the staffer notes that despite the hazard emphases, actual numbers of hospital and nursing home inspections may not actually increase, and that resource constraints may make it difficult for field staff to concentrate on the sector. “It doesn’t seem to say they will do any more inspections in health care [but is] just highlighting to their inspectors … hospitals have these major hazard areas that we know from the data.”

Still, “the more pressure on OSHA’s inspection resources, the less of these they’re going to do,” the source says. “It seems like a small step but at least it’s in the right direction.”

Worker advocates praised OSHA’s move, with organized nursing labor at the forefront and emphasizing ergonomic concerns. “Labor statistics have consistently shown that nurses, nursing assistants and other health care workers are at high risk of MSDs from manually lifting, transferring and repositioning patients,” Debbie Dawson Hatmaker, executive director of the American Nurses Association (ANA), said in a June 25 statement. “Manual patient handling is unsafe for patients and often results in painful, career-ending health care worker injuries.”

ANA hopes the enforcement memo will encourage hospitals to proactively address safe patient handling and mobility and create comprehensive programs to protect patients, nurses and other health care workers, she says. “While OSHA’s action is a step in the right direction, ANA believes a federal ergonomic standard is necessary to protect health care workers and is working with Congress to introduce legislation that would establish such a standard.”

Public Citizen has also been highly engaged in safe patient handling and issued a June 25 statement underscoring ergonomics.

“We applaud OSHA for directing agency time and resources toward hospitals. Heightened inspection and enforcement actions likely will reduce injuries and slow the rate of musculoskeletal disorders in the hospitals that OSHA inspects, but it isn’t enough,” said Keith Wrightson, worker safety and health advocate for Public Citizen’s Congress Watch division. “The real answer to addressing these career-ending injuries is to enact a federal law … to protect these workers that would reduce or eliminate heavy manual lifting in hospitals and other health care settings.”

 A model law would incorporate written patient handling policies and require the use of mechanical devices to move patients, and would require institutions to keep accurate counts of musculoskeletal disorders sustained on the job, analyze the causes of such injuries and submit annual reports to regulatory agencies on the number of musculoskeletal disorders experienced by employees, Public Citizen says. — Christopher Cole (ccole@iwpnews.com)

 

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