What should you do when OSHA shows up?
Managing Occupational Safety and Health Issues in the Infection
By James L. Koewler Jr.
The US Occupational Safety and Health Administration (OSHA) has a growing list of rules for employers with infection control functions. As a result, the rules place increasing responsibilities on the supervisors of infection control professionals. The following discussion will summarize a number of OSHA rules specifically impacting infection control work, explain OSHA's inspection process, and suggest management strategies to avoid workplace safety and health problems, as well as agency fines.
The bloodborne pathogens rule is OSHA's most pervasive requirement in infection control. The rule mainly focuses on preventing transmission of HIV and HBV. The infection control industry is familiar with the day-to-day requirements of the bloodborne pathogens rule: the minimization of exposure incidents, the use of personal protective equipment (PPE), and the cleanup or disposal of equipment and areas that have blood, other bodily fluids, or bodily tissues on them.
One of the day-to-day work practices continues to be a sore spot among healthcare and other infection control professionals. It is standard procedure not to replace the cap on a hypodermic needle after its use. Except for the few people who have devised a tool to hold the cap, such a procedure would force the person to bring the used needle very close to their hand and fingers while holding the cap.
For this reason, hypodermic needles present a difficult choice for health and safety regulators as well as healthcare and infection control professionals. Except when the sharps container is immediately at hand (and sometimes it isn't), the person carrying the needle runs the risk of bumping into someone or something, slipping or falling--sneezing, or coughing that could cause an accidental needlestick to themselves or someone else. There simply are no clear-cut choices to eliminate this risk.
While the infection control industry generally has very good implementation of the day-to-day requirements of the rule, except for the issue concerning needle caps, one significant issue remains as a source of frequent non-compliance. The rule requires a review and adjustment of each employer's bloodborne pathogens program annually. The rule also requires each employer to revise its program whenever a new operation (or modification of an old operation) renders the existing bloodborne pathogens program ineffective, incomplete, or obsolete. Some employers fail to review and revise their programs.
Sharps management has gotten even more complicated. Responding to a Congressional mandate, on January 18, 2001, OSHA modified the bloodborne pathogens rule to add new requirements specifically aimed at needles and other sharps. Employers that must establish exposure control plans must now seek input from front-line employees who have potential exposure to contaminated sharps. In addition, as part of its annual review of the exposure control plan, employers must account for changes in technology and in commercially available products that reduce the risk of needlesticks and other sharps injuries. Further, each employer must keep a log of sharps injuries in conjunction with its occupational injury and illness log (the OSHA-200, scheduled to be replaced by the OSHA-300 in early 2002), including an explanation of how each incident occurred.
The hazard communication rule, also known as employee right-to-know, is also very important in infection control because of the myriad of chemicals. Most employers have improved at notifying their employees about the material safety data sheet (MSDS) book and in how to read an MSDS. Employers have also done a good job at making employees generally aware of the risks that exposure to chemicals in the workplace can cause.
Many employers, however, fail to give the employee-specific and chemical-specific training the rule requires. It is not enough simply to sensitize employees as to the risks chemicals might cause. The employer must determine the specific chemicals that each employee encounters in his or her work. Each employee must then receive training on the hazards and proper handling of each chemical.
Many employers also forget that they must re-train employees when a new chemical is introduced into the workplace. Additionally, the employers must re-examine their hazard communication program annually to look for changes in chemical use and changes in employee tasks. Even if nothing changes from year to year, employee retraining should take place annually. Similarly, new or transferred employees should receive chemical-specific training before starting their new duties.
The current tuberculosis rule is not much more than a respirator rule aimed specifically at this disease. In late 1997, OSHA proposed a new tuberculosis rule that closely resembles the chemical-specific or material-specific rules such as the one for cotton dust. The proposed rule would require that the employer make a determination of which employees or classes of employees have exposure to tuberculosis and how that exposure occurs. The proposed rule would also require an extensive exposure control plan outlining step-by-step procedures to minimize tuberculosis exposures by employees. The proposed rule, logically, includes a respiratory protection section, but it is significantly beefed up compared to the current rule. The rule will require a very specific procedure for medical monitoring of potentially exposed employees. Finally, it would set out a system of signs, labels, and other warning methods for areas where exposure might take place.
This rule was proposed more than three years ago and it still has not become final. Nonetheless, it will probably become a final rule in the not-too-distant future. The tuberculosis rule was a lower agency priority than the ergonomics rule during the Clinton administration. The ergonomics rule was finally adopted in Fall 2000, and the tuberculosis and other lower priority rules are still waiting. In fact, the ergonomics rule demonstrates the long life of some proposed rules--it was ten years in the making.
The proposed health and safety program rule also could impact infection control professionals. This proposed OSHA rule would require each employer to evaluate its workplace for health and safety risks and to devise ways to eliminate or (if elimination is not possible) reduce those risks. In other words, the health and safety program rule would mandate workplace safety and health auditing.
Presumably because the audit would become an agency requirement, OSHA's recent policy preserving some level of confidentiality for today's audit reports will no longer apply. In addition, by mandating audits, OSHA can potentially prevent use of the attorney-client privilege and other evidentiary privileges to protect the confidentiality of audits and audit reports.
The health and safety program rule also purports to mandate "continuous improvement." Through this requirement, the proposed health and safety program rule focuses on the results rather than the employer's efforts. One wonders, however, how far the government will push such a requirement. Must an employer always have the newest and safest state-of-the-art equipment? Is such an effort to keep up with new technology worth the capital expense, retraining, and administrative costs? If not, what allowance is made for the aging of equipment?
Thus, the proposed health and safety program rule creates many more questions than answers. As a result, the new Bush administration may not make this proposal a high priority. As demonstrated by the ergonomics rule, however, do not expect the health and safety program proposal to die. The agency will look for an opportune time to resurrect it.
How Does OSHA Choose a Worksite to Inspect?
OSHA can inspect a worksite because of an accident or an employee complaint, or because the worksite was chosen at random. For example, OSHA must inspect worksites after a fatality or an accident resulting in three or more workers staying overnight in the hospital. (This is frequently referred to as a "fatal or catastrophic accident" or Fat Cat.) OSHA places these inspections at the top of its priority list.
OSHA also is obligated to investigate any complaints by employees, giving such inspections the next level of priority below Fat Cats. Employee complaints play a major role in OSHA inspections where employees belong to a union or are considering joining. Employee complaints from non-union workplaces also merit high-priority inspections from the agency, but the number of such complaints is usually lower. Worker complaints also supplement the Fat Cat system because most accidents do not send three employees to the hospital but only involve one employee (who may not stay overnight in the hospital). Still, such non-Fat Cat accidents frequently result in worker complaints, which then lead to inspections.
A member of the general public or an employee of a different regulatory agency also can cause an OSHA inspection. If a member of the public sees an unsafe condition, a call to OSHA is likely to trigger an inspection, or at least a telephone call to the employer. Similarly, a potentially unsafe condition identified to OSHA by a different agency (such as the building department, EPA, or police) will also lead to an inspection. It is also possible that an OSHA employee will see a possible violation, and can in turn trigger an inspection, in a "self-referral." There is no need for the agency employee to be on official business. He or she merely needs to witness the possible violation from a place where he or she has a right to be, such as visiting a friend or family member.
Finally, OSHA undertakes a number of inspections in a relatively random manner. The resulting programmed inspections usually look at compliance with almost every OSHA rule applicable at the worksite. The lottery system by which worksites are chosen for programmed inspections is not completely random, however. Companies and industries with historically higher injury or illness rates are more likely to be inspected. Further, OHSA has recently started to review each worksite's particular injury and illness rate (as shown by the annual OSHA-200 logs and by workers compensation records) to target the worksites within each industry with the highest injury and illness rates. Additionally, OSHA headquarters now requires each area office to identify a particular industry, type of hazard or type of worksite for special attention. Each area office's targeting plan is included in the selection process for programmed inspections.
The decision to allow OSHA onto the worksite should depend on whether the agency has a warrant to enter the site without consent. A Fat Cat incident and the programmed inspection lottery will always sustain a warrant. Employee complaints, referrals from sister agencies, or the public, and OSHA self-referrals might sustain warrants, depending upon what they allege. Unfortunately, the decision whether to let OSHA onto the site is really a judgment call, as is a court's decision whether a warrant is valid.
How Does an Inspection Work?
Inspections are supposed to start with an opening conference, where the inspector should explain why the worksite was selected. Depending upon how it was chosen, the inspection may be limited, although the employer probably will have to take the initiative to set the limits. Programmed inspections have no limit as to subject matter, but they should not become overly burdensome or unduly interfere with work. All other inspections may be limited to the issues that prompted the inspection. A Fat Cat inspection can be limited to the facts surrounding the accident. An employee complaint, agency or public referral, or self-referral can be limited to the complaint items, the referral items, or what the OSHA employee saw previously.
After the opening conference, the inspectors will conduct a walkaround inspection. An employer representative should accompany each inspector, and an employee representative is allowed to participate as well. In a unionized company, the employee representative is easy to identify. In a non-union company, employees may participate in the walkaround but usually choose not to take part.
The walkaround also can include the inspector's review of company documents on safety and health. Frequently, the document review takes place before the inspector visits the actual work area. Some of the OSHA rules contain very detailed requirements for written plans and documentation. As a result, the agency's document reviews are becoming the source for a great number of citations.
The inspection ends with a closing conference at which the inspector will share his or her impressions of the worksite's safety and health status. Frequently, the inspector will share with the employer (and any participating employee) what the inspector intends to recommend for citation and follow-up. Such details, however, are not required.
After the closing conference, the inspector will report to his or her supervisor, and together they will determine whether the employer should be cited. When the citations arrive at the worksite or office, each cited employer will have three weeks in which to respond. Before the deadline, the employer must contest or settle the citations. Failure to do so will be deemed acceptance of the citations as proposed by the agency.
The agency can deem citations serious, which means that any resulting injury or illness would probably be very harmful or fatal to an employee. If the likely harm is lower, the agency calls the alleged violation other than serious. Both serious and other-than-serious violations can carry penalties up to $7,000. If the employer had the same or a similar violation within the preceding three years, OSHA can call it a repeat violation and attach a penalty up to $70,000. If the agency feels that the employer acted with indifference or recklessness toward its employees' safety, it can call a citation willful and seek a $70,000 penalty.
State OSHA Programs
A number of states have the authority to implement their own OSHA programs in lieu of the federal program. While most such state programs have substantive rules similar (and often identical) to the federal rules, the states' citation, negotiation and appeal procedures can vary widely. An employer must determine for each of its locations which government body has OSHA authority and what the substantive and procedural rules require.
How to Handle Inspections
During an inspection, an employer mainly should remember to be cooperative with an inspector but not be an apologist. The employer should show an inspector what the inspector has a right to see (the working conditions about which an employee complained or another regulator or third person brought to the attention of the agency, the location of a fatal or catastrophic accident). However, the employer can stop the inspection from straying into other areas or examining other issues except what the inspector can see in "plain view" while in an area he or she has a right to inspect. Similarly, the employer's representatives should avoid making incriminating statements. The question "How long has this violation been going on?" has many traps and does not merit an answer.
An employer representative should accompany each inspector throughout the inspection; taking notes and photographs when appropriate. Whenever the inspector takes a photograph, the company representative should take the identical photograph, standing shoulder to shoulder with the inspector if necessary. Likewise, if the inspector takes videotape, an employer representative should take the identical videotape.
Finally, employers must handle the inspectors' interviews with employees carefully. OSHA is quick to point out that employee interviews are meant to be private. That privacy right, however, is not the agency's but the employee's. If the employee wishes a coworker, an employer representative, or a third person to attend the interview, the agency is supposed to cooperate. Absent a subpoena (which is rare in OSHA cases) an employee can refuse to talk with the inspector. The employer should tell employees of these rights before any interview by an inspector.
After an employee finishes an interview with OSHA, the employer should ask the employee to talk with a management representative. The management representative should ask the employee what the inspector(s) wanted to know and what the employee said. The company should not force the employee to talk. Similarly, if the employee wants someone else present during the management debriefing, management must cooperate. Above all, the company cannot punish an employee for his or her decision. It should not matter whether the employee talks with the agency, with management, with neither, or with both.
How to Minimize OSHA Problems
Training is one of OSHA's biggest hot buttons. Almost every new standard has within it a training requirement. When carrying out the training, employers should carefully document what was discussed and who attended. Without documentation, the employer will have no way to prove that the training occurred.
Similar to the training requirements, many rules required the designation of a competent person to determine when conditions are safe and the proper procedure has been used. Employers should designate and train competent persons to take charge of such tasks and should designate enough of them to avoid delays at different work areas.
Employers must enforce safety rules that apply to their employees. The agency expects "graduated enforcement" with penalties increasing for repeated violations. For example, the first violation of a safety rule might lead to a verbal warning. The second violation might lead to a written warning countersigned by the employee, a third violation to a day's suspension without pay, a fourth violation to a week's suspension without pay, and a fifth violation to termination. While OSHA would like to see such a graduated system strictly enforced, the realities in a workplace make implementation difficult. A system of graduated punishment also conflicts with the positive reinforcement efforts that many employers are using to encourage "good" employee behavior in many areas, including health and safety.
Unfortunately, most OSHA rules cannot be satisfied with a one-time fix. A safe workplace requires constant diligence. Accordingly, a program of frequent self-inspection is recommended. This obviously requires a close knowledge of the rules and their implementation. Because any such audit could be a "road map" of an employer's OSHA violations, I also suggest a great deal of care in documenting inspection results.
Further, an annual in-depth examination of the employer's entire health and safety program by an outside OSHA attorney is recommended. The attorney can, if necessary, engage the services of a safety consultant. As part of his or her legal advice to the employer, the attorney can provide detailed, frank suggestions on improving the health and safety program, protected from disclosure by the attorney-client privilege and other similar privileges.
OSHA's Audit Policy
In August 2000, OSHA finalized a new policy regarding employer self-audits. The policy is meant to encourage employers to audit their safety and health programs and their compliance with regulations. Under OSHA's policy, inspectors will request copies of audit reports (or other information from audits) only infrequently. The inspectors are not supposed to ask for the audit report as a way to find violations. They should request an audit report only after finding some separate evidence of a violation. The agency will then review the audit report to determine if penalties against the employer should be increased or decreased.
If the violation was found by an audit, the employer eliminated the violation and took steps to prevent its recurrence before the inspection (or before the accident or complaint that gave rise to the inspection), then the agency is not supposed to cite that particular violation. (Absent an audit, OSHA can cite an employer for any violation within the previous six months, even if the violation was eliminated before OSHA's inspection.)
If an audit finds a violation, the employer has taken--but not yet completed--efforts to eliminate the violation and has taken interim steps to reduce employee exposure, then the agency may cite the employer for a violation but will not classify it as willful. Instead, OSHA will reduce the proposed penalty for the company's good faith efforts.
If the employer found a violation in an audit but failed to take corrective steps, the audit would probably be used to demonstrate the employer's willfulness, greatly escalating penalties for the violation. (This is not stated in the policy, but is a possible inference from the policy's provisions.)
Even though OSHA now seems to grant some forgiveness to employers for conducting self-audits, employers still should conduct such audits in a way that invokes the attorney-client privilege against disclosure. Under OSHA's policy, the agency judges in hindsight whether an employer acted in good faith and adequately responded to audit findings. Thus, at the time an audit is disclosed, the employer does not know how OSHA will treat the audit. Accordingly, audits should be kept confidential. Then the employer can choose when, how, and whether to make a disclosure.
Jim Koewler practices OSHA and environmental law with Kahn, Kleinman, Yanowitz & Arnson Co., L.P.A. in Cleveland, Ohio. Koewler gratefully acknowledges the help of Lorrie Sass, also of Kahn Kleinman, and of Nancy Grannis, of Media First Public Relations, in preparing this article.
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