Health Care in the Crosshairs: OSHA’s New Health Care Enforcement Initiative

© 2015 Epstein Becker & Green, P.C. | All Rights Reserved. ebglaw.com

Health Care in the Crosshairs:OSHA’s New Health Care

Enforcement InitiativeValerie Butera

June 17, 2015

© 2015 Epstein Becker & Green, P.C. | All Rights Reserved. | ebglaw.com 2

This presentation has been provided for informational purposesonly and is not intended and should not be construed toconstitute legal advice. Please consult your attorneys in

connection with any fact-specific situation under federal, state,and/or local laws that may impose additional obligations on you

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© 2015 Epstein Becker & Green, P.C. | All Rights Reserved. | ebglaw.com

Presented by

Valerie ButeraMember, Labor and Employment Practice

Washington, D.C. Office

[email protected]

202-861-5325

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Agenda

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1. Why is OSHA Focusing on the Health Care Industryand What is the Agency Looking For?

2. What Steps Can Health Care Employers Take Now toPrepare for OSHA’s Increased Scrutiny andEnforcement Efforts?

3. What to Expect From an OSHA Inspection

4. Strategies for Successfully Navigating an OSHAInspection

5. Post-Inspection Considerations


Why is OSHA Focusing on theHealth Care Industry andWhat is the Agency LookingFor?


Why Health Care?

Nurses’ unions successfully demanded OSHA’s attention

Over 600,000 work-related injuries and illnesses each year

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The Dreaded General Duty Clause

The General Duty Clause provides that each employer must:

“furnish to each of his employees employment and a place ofemployment which are free from recognized hazards that are

causing or are likely to cause death or serious physical harm to hisemployees.”

Section 5 of the OSH Act provides OSHA with the power of theso-called General Duty Clause

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What Hazards Will OSHA Look For WhenInspecting a Health Care Facility?

Musculoskeletal injuries resulting from lifting patients or residents

Spread of infectious diseases

Bloodborne pathogens

Workplace violence

Slips, trips and falls

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http://portal.ebglaw.com/knowledge/MKT/Marketing Image Library/Stock Images/Biohazard-4X3.jpg


What Steps Can Health CareEmployers Take Now toPrepare for OSHA’s IncreasedScrutiny and EnforcementEfforts?


Conduct an Internal Safety and HealthCompliance Audit

OSHA has a policy admonishingcompliance officers’ collectionand use of data in an employer’sinternal audit reports except incertain highly unusual situations.

Many compliance officers ignorethis policy, however, withinternal audit reports often beingamong the first documentsrequested when OSHA walksthrough the door.

The audit reports can then beused as the basis of a fishingexpedition to identify possiblehazards at the worksite.

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The Attorney-Client Privileged Audit


Additional Pre-Inspection Action Items

Carefully scrutinizeyour own OSHA

policies and practices,as well as those ofthird parties that

provide services to you

Familiarize yourselfwith the healthcare

page of OSHA’swebsite:

https://www.osha.gov/SLTC/healthcarefaciliti

es/index.html

Implementcomprehensive safety

programs

If you have more thanone facility, ensure

that all of yourfacilities are in

compliance

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What to Expect From anOSHA Inspection


The OSHA Inspection

Section 8(a) of the OSH Act provides that:

“OSHA may inspect at reasonable times any workplace during regular workinghours and at other reasonable times within such reasonable limits and in a

reasonable manner.”


OSHA’s Inspection Rights

Right to inspect workplaces

Right to inspect withoutadvance notice

Right to inspect records

Right to collect physicalevidence

Right to conduct interviews

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Employees’ Inspection Rights

Right to file a complaint

Right not to be discriminated or retaliated against

Participation Rights:

• Opening conference

• Walkaround

• Private interviews

• Closing conferences

• Informal settlement conferences

• Access to inspection records

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Employers’ Inspection Rights

“Reasonable inspection” and “reasonable times”

Demand inspection warrants

Hold opening conference

Access a copy of complaints

Protect trade secrets

Accompany the compliance officer during walkarounds

Participate in management interviews

A closing conference

Challenge citations

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Strategies forSuccessfully Navigatingan OSHA Inspection


The Employer’s Goals in an OSHA Inspection

Control Flow of Information

Minimize Business Disruption

Cast Workplace in Best Light

Identify Potential Problems Early


Designate an Inspection Team

Designate an Inspection Team

Train the Inspection Team

Designate and audit walkaround routes

Provide inspection tools

Determine whether to demand a warrant or to consent to an inspection

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Stages of an OSHA Inspection

Opening Conference

Walkaround Inspection

Employee Interviews

Closing Conference

Citations Issued/Contested


The Opening Conference

Compliance officer arrives and displays credentials

Opening conference begins:

• Employee representatives may participate

• Compliance officer will explain the purpose of the inspection

• Compliance officer will discuss the scope and duration of the inspection

• Resolve the warrant issue

• Compliance officer will request documents and information

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Document Production

Insist on written requests for documents

Voluntary vs. subpoena

Do not create new documents

Do not leave documents in plain sight

Do not volunteer information unless without more information OSHA willmisunderstand a fact to your detriment

Review documents for responsiveness, privilege, trade secrets, and otherlegally protected confidential information prior to production

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Walkaround Inspection

Scope depends on the nature/purpose of the inspection

Always accompany the compliance officer

Employee representative may also accompany the compliance officer

Act professionally but protect your rights

Fix hazards identified by the compliance officer but do NOT admit violations

Require the compliance officer to follow your safety rules

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• Create an interview procedure

• Pre-select an office or conference roomwhere the interviews shall take place

• Stop and Talk vs. Interview

• Five minute rule

• OSHA must be reasonable

OSHA Inspection Interviews

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Non-Managerial Employee Interviews

OSHA demands privacy when conducting interviews of employees that arenot in management

• The right to a private interview belongs to the employee

• The employee may have a union representative or other representative present

• Management does not have the right to designate a representative to accompanythe non-managerial employee

Do not coerce or intimidate employees

Do not discriminate against employees

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Management Interviews

Supervisor’s knowledge is imputed to the employer

Do not permit impromptu management interviews

Participate in all management interviews – this rightbelongs to the employer, not the witness

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Prepare All Employees for Interviews

ReviewSubstantive

Issues

GiveInterview

Tips

ExplainWitness’

Rights

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What Your Employees Need to Know Aboutthe OSHA Interview

Voluntary interview

Right to a reasonable schedule

Right to be represented

Right not to be recorded

Right not to sign/write/draw

Right to examine documents

Right to take a break at any time

Always tell the truth

Listen carefully

Answer only the question asked

Short, concise answers

Stick to the facts

Do not guess or speculate

Do not rely on hearsay

No silence is awkward

Do not let the compliance officeranswer for you

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Closing Conference

Held at close of the inspection (and may occur weeks after the on-siteinspection)

Compliance officer explains post-citation rights

Compliance officer communicates findings:

• Standards allegedly violated

• Basis for alleged violations

• Possible abatement and abatement dates

• Usually will not share classification (e.g., other than serious, serious, willful,repeat) or the penalty

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Post-InspectionConsiderations


Citations Issued

OSHA has 6 months to inspect, draft report, and issue citations

• Delay caused by warrant/subpoena does not toll the 6 month statute oflimitations period

Citations delivered by hand or certified mail, return receipt requested

Press releases

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Post-Citation Options

Upon receipt of a citation, employersmay:

• Pay the fine and accept the citations

• Request a variance

• Resolve citations at an informal settlementconference

• File a Notice of Contest, and then:• Negotiate a formal settlement with OSHA’s

attorney (Solicitor of Labor)

• Proceed to a hearing on the merits

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Why Employers Should Contest Citations

Some employers think that because the financial penalties associated withOSHA citations may be relatively low, they should just pay the fines and makeOSHA go away. But employers need to take much more into account indetermining whether to challenge an OSHA citation.


Be In The Know

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Visit EBG’s OSHA and Health Care Blogs

www.oshalawupdate.com www.healthemploymentandlabor.com

www.healthlawadvisor.com

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Questions?

Valerie ButeraMember, Labor and Employment Practice

Washington, D.C. Office

[email protected]

202-861-5325

37


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Health Care in the Crosshairs: OSHA’s New Health Care Enforcement Initiative

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