Increases on the Horizon?

The law gives OSHA discretion to adjust penalty amounts to something less than the maximum authorized by Congress, and officials at the agency have not determined just how significantly maximum penalty amounts will increase from the current caps of $7,000 for a “serious” violation and $70,000 for a “willful” or “repeat” violation. Congress has authorized increases tied to the increase in the Consumer Price Index since penalties were last raised (i.e., up to 82% times current penalty amounts based on current CPI). Thus, based on the present calculus, the penalty amount for a “serious” violation could increase to approximately $12,740, and the penalty for “willful” and “repeat” violations could increase to approximately $125,740. Based on the amount of penalties assessed in fiscal year 2014, increasing penalties to the maximum would have generated nearly $120 million of additional revenue to finance government operations, including OSHA’s operations.

Before raising penalty amounts, the law requires the White House Office of Management and Budget (“OMB”) to issue guidance by January 31, 2016 detailing the procedures for implementing the law’s provisions, and OSHA must publish an interim final rule by July 1, 2016.

Bottom Line

The cost of an unsafe workplace may keep going up. We will continue tracking developments in this area.

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The website calls hospitals “one of the most hazardous places to work,” more dangerous than the “relatively hazardous” manufacturing and construction industries.  Leaving aside OSHA’s hyperbole, it is true that U.S. hospitals recorded over 253,000 work-related illnesses and injuries in 2011 alone—nearly twice the rate occurring in private industry and amounting to 6.8 work-related illnesses or injuries for every 100 full-time employees. Moreover, a staggering 32.7 percent of recorded injuries to hospital employees involved interactions with patients.

In response to its safety concerns, OSHA has introduced resources aimed at “understanding the problem,” managing “safety and health” systems, and “safe patient handling.” OSHA calls for hospitals to consider implementing a “comprehensive, proactive safety and health management system” to find and fix workplace hazards. Resources — including assessments — appear on the website as a means to encourage hospitals to take active measures to prevent future illnesses and injuries, as well as develop policies, procedures, programs, training and education opportunities in furtherance of that goal.

The DOL also has a “Hospital eTool” with links to Clinical Services, Surgical, ICU, Administration, Dietary, Laboratory, and Pharmacy, among other areas. The site identifies hazards and solutions specific to the above-mentioned areas, as well as provides safety and health tips for hospitals and employees to consider.

Bottom Line

OSHA has expressed interest in aiding hospitals in reducing the hazards faced by their employees. It may also mean that hospitals will face increased scrutiny by the Agency to determine if hospitals are taking enough steps to reduce the hazards pointed out on the OSHA website.

Felhaber’s OSHA team—Marnie Fearon, Ryan Olson, Rich Voelbel, and Brad Kolling—will continue to monitor developments and provide updates as they become available.

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The Bureau of Labor Statistics has estimated that almost 2 million workers experience workplace violence every year.  While the degree of violence varies, hundreds of American workers are murdered each year at work in acts that we all say “couldn’t happen here”, until they do.

Obviously, there is no sure-fire plan that will guarantee complete freedom from workplace violence.  Violence is often irrational and unpredictable, and occasionally totally random.  Still, there are steps that employers can and should take to give themselves the best possible chance of preventing such tragedies.  These steps include:

• Enact, publicize and enforce a zero-tolerance policy for threats and violence in your workplace.  Make sure that you clearly define the behaviors that are covered.

• Ban weapons from the work environment.

• Conduct thorough criminal background checks before hiring.

• Educate supervisors and managers on the warning signs of troubled employees and potential violence.

• Establish clear and comfortable procedures for employees to report threats or violent acts.

• Resolve workplace disputes expeditiously and fairly so that resentments don’t escalate.

• Evaluate security procedures on a regular basis.

• Prepare a plan for responding to potential and actual violence.  Identify available resources, assign authority for contacting police, etc.

• Consider maintaining an employee assistance plan (EAP) to provide effective referrals for employee experiencing the types of problems that often precede acts of violence.

• Handle disciplinary and termination issues with dignity and professionalism, but also with caution and preparedness.

The best way to prevent workplace violence is to anticipate and defuse it.  After all, isn’t it better to ask your self “what can I do?” rather than “What could I have done?”

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Interestingly, OSHA already had a site-specific targeting program and approximately 500 nursing homes were inspected in 2011 because of their above-average number of reported work injuries. So, it is unclear how this new “National Emphasis Program” changes what has already been in place.  What is clear is that OSHA believes that nursing home work injuries occur too frequently and at too high of a severity to avoid targeted inspection.

According to statistics published by the Department of Labor’s Bureau of Labor Statistics (BLS) in the Nonfatal Occupational Injuries and Illnesses Requiring Days Away From Work, 2010, report in November 2011, 489 out of every 10,000 employees working as nursing aides, orderlies and attendants sustained injuries that resulted in lost time from work in 2010.  The average rate for all workers in all industries was 118, with bus drivers and law enforcement officers being the only professions with higher rates of loss-time injuries.  The BLS report shows that healthcare workers’ most common injuries were muscle sprains, strains and tears (56%) and the most common causes of injuries were lifting/overexertion (49%) and falls (18%).

In some ways, Minnesota nursing homes may be better prepared to weather the targeted inspections.  Minnesota’s state agency (MNOSH) already goes beyond Federal OSHA regulations by having implemented Safe Patient Handling (SPH) requirements for healthcare facilities, including nursing homes.  The SPH Statute, Minn. Stat. § 182.6553 was enacted in 2008 and required healthcare facilities to have a SPH program operational by July 1, 2011.  Consequently, Minnesota healthcare facilities must already have written policies and procedures on safe patient handling, an active committee that identifies, evaluates, addresses and resolves SPH issues, proper equipment, training, assessment tools and methods for properly recording and reporting on SPH issues.

For many nursing homes, this “National Emphasis Program” will not translate into a greater chance of citation for violations.  However, it may make it more likely that the new year will bring a visit from a MNOSH inspector.

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