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​Healthcare in the Crosshairs: OSHA’s Continued Focus on Inpatient Healthcare Providers

Labor & Employment Law Alert Kerry M. Mohan, Sarah E. Coyne

The healthcare industry has long been a favored target for the Occupational Safety and Health Administration (OSHA) due to the large number of employees and numerous occupational safety and health issues associated with healthcare. On June 25, 2015, OSHA published a new enforcement memorandum titled Inspection Guidelines for Inpatient Healthcare Settings (Inspection Guidelines). OSHA's recent policy follows its April 2, 2015, announcement that it will continue its National Emphasis Program (NEP) on Nursing and Residential Care Facilities indefinitely. These two enforcement memoranda signal a clear move by the Agency to extend the NEP—which was limited to nursing and residential care facilities—to all inpatient healthcare settings, and to impose additional compliance burdens on healthcare employers without going through regulatory process.

What is OSHA focusing on?
OSHA has identified five areas that will be specifically targeted during all inpatient healthcare inspections, programmed or unprogrammed: (1) ergonomic issues related to patient handling; (2) bloodborne pathogens and infectious materials; (3) exposure to tuberculosis (and other contagious diseases); (4) workplace violence; and (5) slips, trips, and falls.

Ergonomic Issues
OSHA alleges that musculoskeletal disorders (MSD) related to resident handling (e.g., lifting, transferring, or repositioning) account for 44 percent of all reportable injuries in the healthcare industry. OSHA's enforcement memoranda instruct OSHA investigators to spend considerable time to review the number of ergonomic injuries at a worksite and determine whether the employer's ergonomic program adequately addresses issues related to program management, program implementation, employee training, and occupational health management to ensure that employees are: (1) protected from ergonomic injuries and illnesses; and (2) properly treated in the event they experience an ergonomic injury or illness. In short, OSHA's enforcement memoranda now require healthcare employers to develop ergonomic injury and illness prevention programs (IIPP), even though no Federal regulations mandate it.

Another particularly troubling aspect of OSHA's enforcement memoranda is their directive that OSHA investigators evaluate resident handling in the areas that it takes place (e.g., restrooms, showers, and bathing areas). OSHA's directive certainly raises privacy issues that all healthcare providers should consider before granting OSHA access to sensitive areas.

Bloodborne Pathogens
Following the recent healthcare worker Ebola infection incidents, OSHA has increasingly focused on the issue of bloodborne pathogens and infection control. Consequently, OSHA investigators are instructed to evaluate employers' Exposure Control Plans (ECPs), engineering and work practice controls, bloodborne pathogen training, personal protective equipment (PPE), and post-exposure treatment. Accordingly, healthcare employers should be prepared to show the adequacy of its bloodborne pathogens program upon OSHA's arrival.

Tuberculosis
OSHA's enforcement memoranda also require OSHA investigators to evaluate whether a healthcare establishment has had a suspected or confirmed tuberculosis case among patients within the prior six months, whether the employer has procedures to promptly isolate and manage the care of the suspected or infected patient, and whether the employer offers tuberculin skin tests for employees treating the infected patient. Thus, similar to bloodborne pathogens, employers should be prepared to demonstrate that they have effective protocols in place to safely control tuberculosis cases.

Workplace Violence
OSHA has publicly stated that workplace violence is a "recognized hazard in nursing and residential care facilities," alleging that workplace violence accounts for 13 percent of all recorded injuries and illnesses. As such, OSHA investigators will evaluate the number of injuries related to workplace violence and determine whether an employer has established appropriate controls and policies to handle aggressive or violent patients. If OSHA determines that a high incident of workplace violence occurs at a worksite, an employer can expect a General Duty Clause citation to be issued.

Slips, Trips, and Falls
OSHA claims that slips, trips, and falls, combined with overexertion, account for nearly 69 percent of all reported cases with days away from work within the healthcare industry. Consequently, OSHA investigators are instructed to look for slippery or wet floors, uneven walking surfaces, unguarded floor openings, and/or inadequate aisles for moving residents. OSHA investigators also will look at the employer's policies regarding spill cleanup and appropriate footwear, as well as whether slip, trip, and fall hazards can be abated through nonslip or coated surfaces. Thus, healthcare employers should ensure that its walkways are in good repair, spills are promptly cleaned, and aisleways are not overly crowded with equipment.

Additional Hazards
It is important to remember that OSHA's healthcare investigations are not limited to the five areas specifically identified in the enforcement memoranda, because OSHA investigators are permitted to expand the inspection's scope if they learn of additional hazards. For instance, OSHA has instructed its inspectors to investigate issues related to occupational exposures to multi-drug resistant organisms, such as MRSA, and exposure to hazard communication (HazCom). Thus, it is important that healthcare employers evaluate all of their safety programs to ensure they are compliant.

What should healthcare employers do?
Inpatient healthcare employers are faced with countless regulatory requirements that can be confusing to understand and difficult to satisfy. Moreover, an OSHA investigation can be a daunting experience, particularly when it involves numerous issues in multiple parts of a facility. To limit liability exposure, it is advisable for a healthcare employer to:

  1. Evaluate its ergonomics, bloodborne pathogens, infectious disease, workplace violence, and slips, trips, and falls programs to ensure they are thorough and accurate. For assistance, an employer can visit OSHA's website, which provides extensive materials on issues related to the healthcare industry, including OSHA's recent Guidelines for Preventing Violence for Health Care and Social Services Workers.
  2. Ensure that all employees have been trained on the facility's health and safety programs. If the employer has any concern as to whether prior training has been inadequate, refresher training should be provided.
  3. Consider whether to conduct an internal audit in the five areas identified by OSHA's enforcement memoranda to determine whether exposure exists. Before conducting such an audit, the employer should consult with outside counsel to ensure that the audit, and its subsequent reports, are privileged and protected from disclosure to OSHA.
  4. Prepare for potential OSHA inspections by establishing a clear chain in command; notification guidelines as to who is to be informed when OSHA arrives; and an inspection lead responsible for communicating with the OSHA investigator, managing the flow of information and documents to OSHA, and chaperoning the investigator on all walkarounds.

Employee safety is an essential component of any workplace, and healthcare employers should use OSHA's recent enforcement memoranda as an opportunity to verify their programs' accuracy and abate potential hazards. Failing to do so could subject employers to increased injury and illness rates and OSHA citations and penalties.

If you have questions about health law, healthcare regulatory requirements, OSHA's enforcement memoranda, or how to comply with OSHA's regulations, please contact, Sarah E. Coyne at (608) 283-2435/sarah.coyne@quarles.com, Kerry M. Mohan at (608) 283-2620/kerry.mohan@quarles.com, or your Quarles & Brady LLP attorney.