• OSHA Signals an Increased Focus on Hospital Industry
  • February 10, 2014 | Authors: Melissa A. Bailey; C. Thomas Davis
  • Law Firms: Ogletree, Deakins, Nash, Smoak & Stewart, P.C. - Washington Office ; Ogletree, Deakins, Nash, Smoak & Stewart, P.C. - Nashville Office ; Ogletree, Deakins, Nash, Smoak & Stewart, P.C. - Washington Office
  • On January 15, 2014, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) launched a new, online compliance assistance tool for hospitals called, “Worker Safety in Hospitals: Caring for our Caregivers.” While OSHA’s stated objective for this resource is commendable—to help hospitals enhance worker safety—the information includes some generalizations that could be initially disconcerting, which may detract from the resource’s general credibility.

    For example, OSHA’s hospital safety overview starts by asking “Did you know that a hospital is one of the most hazardous places to work?” and claims that “it is more hazardous to work in a hospital than in construction or manufacturing.” OSHA also states that “most injuries [in a hospital] result from a few well-known hazards,” which raises the enforcement concerns discussed below. While OSHA identifies a handful of “high-performing hospitals” reportedly engaging in “best safety practices,” the compliance guidance does not recognize the fact that the health care industry is currently one of the most aggressive in working to recognize and reduce injury exposure and to improve employee safety. Those negative points aside, the compliance guidance contains helpful information and many leading-edge suggestions about which the industry should be aware.

    While the website contains hundreds of pages of reports and data and purports to cover all safety issues impacting hospitals, the  information focuses mostly on musculoskeletal disorders (MSDs) resulting from patient handling.  Other hazards—including workplace violence, caregiver fatigue and stress—are also addressed. The information includes data on the numbers and types of injuries occurring in hospitals, as well as “best practices” on how to minimize injuries and illnesses. With regard to patient handling, OSHA provides resources, including guidelines, checklist, and best practices, that  outline guidance on MSD assessment, developing policies, procedures, training, and selecting patient handling equipment.

    Why provide this information now? OSHA likely has multiple reasons. The agency certainly wants to help the hospital industry by providing compliance assistance tools that may prevent injuries. OSHA’s other motivations may be—perhaps even unintentionally—less innocuous.

    The General Duty Clause “Set Up”?

    OSHA has multiple standards, including the Bloodborne Pathogens, Hazard Communication, and Respiratory Protection standards, that apply to hospitals and many other types of facilities. OSHA does not, however, have any standards intended solely for the health care industry. As a result, OSHA often has to use the General Duty Clause of the Occupational Safety and Health Act to cite hospitals for alleged violations. The General Duty Clause is OSHA’s “catch-all” and requires employers to “maintain a workplace free from recognized hazards.” To prove a General Duty Clause violation, OSHA must show that the employer or the employer’s industry “recognized” that a particular hazard existed and that a feasible means of abatement is available. Providing industry-specific information on its website will arguably allow OSHA to claim that a particular hazard is “recognized” in that industry. Similarly, information regarding steps that industries may take to minimize or eliminate hazards provides evidence that feasible measures to abate the hazard exist.

    OSHA has historically used the General Duty Clause in hospitals for patient handling, workplace violence, and tuberculosis hazards. With regard to patient handling, OSHA would argue that the industry clearly recognizes the hazard given the information provided by OSHA and other sources. Similarly, feasible means to abate the hazard—as suggested by OSHA’s guidance—exist. OSHA would likely have other evidence, including proof that MSDs occurred in a particular facility, but the evidence from the website would certainly help OSHA make its case.

    What does this mean for SST inspections?

    Each year, OSHA issues a list of facilities that have reported the highest rates of injuries and illnesses based on data reported to the U.S. Bureau of Labor Statistics. The so-called Site-Specific Targeting (SST) list identifies individual facilities by name, and many of those facilities receive a letter from OSHA stating that injury and illness rates are high and that the facility may be inspected. The agency includes a fairly large number of hospitals and other health care facilities on the list. OSHA’s new compliance tool indicates that OSHA inspectors  will focus on patient handling during SST inspections and are likely to ask facilities how they handle patient lifting, how they assess the potential for MSDs, and why they are not using the specific strategies recommended by OSHA (such as whether assistive devices are available and whether they are using lift teams).

    Important employee relations issues

    Workplace safety is an increasingly prominent issue for hospital employees today, and while perhaps also unintended by OSHA, how employers are perceived by their employees to perform relative to this report’s “best practices” may impact employee relations. In that same vein, the unions that are targeting health care workers for organizing are aware of these safety concerns and will exploit, when possible, employees’ frustrations about  workplace safety  during organizing campaigns. OSHA’s compliance guidance on these issues may help unions in that regard. Likewise, the information included in the guidance will help unions formulate safety-related bargaining demands to present to unionized hospitals during negotiations.

    In an interpretation issued last year, OSHA purported to pave the way for union organizers to be more involved in OSHA inspections. In a nutshell, OSHA’s interpretation letter stated that non-employee union organizers could “represent” employees during an OSHA inspection by accompanying OSHA during a walkaround inspection of a facility, sitting in on employee interviews, and participating in settlement conferences. While this  right is not absolute and requires the OSHA inspector to find the union’s presence beneficial to the inspection, this right to participate may provide union organizers with a new way to access employees who were previously unavailable , as well as a great deal of business information such as policies on patient handling.

    Regardless of whether union organizers are involved directly in the inspection, the OSHA compliance guidance provides a road map for employees and organizers to file complaints with OSHA. The complaints can call out the areas in which the hospital’s patient-lifting protocols do not conform to OSHA’s recommendations and can also claim that employees are exposed to hazards as a result. These complaints will typically result in OSHA inspections.

    Best practices for hospitals

    OSHA’s launch of the web portal indicates that enforcement in the industry is likely to ramp up. Hospitals should review the information provided by OSHA and compare it to their current practices. This is particularly true for hospitals included on the SST list.

    It is critical to understand that the OSHA recommendations are just that—they are not the law. At the same time, the ability to show that a hospital has assessed the hazards that may result from patient lifting and taken steps to mitigate those hazards will be important. Ideally, injury and illness data will show that the mitigation measures that a hospital has taken are effective in that MSDs have declined.