What should you do when OSHA shows up?

June 1, 2001

What should you do when OSHA shows up?
Managing Occupational Safety and Health Issues in the InfectionControl Profession

By James L. Koewler Jr.

TheUS Occupational Safety and Health Administration (OSHA) has a growing list ofrules for employers with infection control functions. As a result, the rulesplace increasing responsibilities on the supervisors of infection controlprofessionals. The following discussion will summarize a number of OSHA rulesspecifically impacting infection control work, explain OSHA's inspectionprocess, and suggest management strategies to avoid workplace safety and healthproblems, as well as agency fines.

Important Rules

The bloodborne pathogens rule is OSHA's most pervasive requirement ininfection control. The rule mainly focuses on preventing transmission of HIV andHBV. The infection control industry is familiar with the day-to-day requirementsof the bloodborne pathogens rule: the minimization of exposure incidents, theuse of personal protective equipment (PPE), and the cleanup or disposal ofequipment and areas that have blood, other bodily fluids, or bodily tissues onthem.

One of the day-to-day work practices continues to be a sore spot amonghealthcare and other infection control professionals. It is standard procedurenot to replace the cap on a hypodermic needle after its use. Except for the fewpeople who have devised a tool to hold the cap, such a procedure would force theperson to bring the used needle very close to their hand and fingers whileholding the cap.

For this reason, hypodermic needles present a difficult choice for health andsafety regulators as well as healthcare and infection control professionals.Except when the sharps container is immediately at hand (and sometimes itisn't), the person carrying the needle runs the risk of bumping into someone orsomething, slipping or falling--sneezing, or coughing that could cause anaccidental needlestick to themselves or someone else. There simply are noclear-cut choices to eliminate this risk.

While the infection control industry generally has very good implementationof the day-to-day requirements of the rule, except for the issue concerningneedle caps, one significant issue remains as a source of frequentnon-compliance. The rule requires a review and adjustment of each employer'sbloodborne pathogens program annually. The rule also requires each employer torevise its program whenever a new operation (or modification of an oldoperation) renders the existing bloodborne pathogens program ineffective,incomplete, or obsolete. Some employers fail to review and revise theirprograms.

Sharps management has gotten even more complicated. Responding to aCongressional mandate, on January 18, 2001, OSHA modified the bloodbornepathogens rule to add new requirements specifically aimed at needles and othersharps. Employers that must establish exposure control plans must now seek inputfrom front-line employees who have potential exposure to contaminated sharps. Inaddition, as part of its annual review of the exposure control plan, employersmust account for changes in technology and in commercially available productsthat reduce the risk of needlesticks and other sharps injuries. Further, eachemployer must keep a log of sharps injuries in conjunction with its occupationalinjury and illness log (the OSHA-200, scheduled to be replaced by the OSHA-300in early 2002), including an explanation of how each incident occurred.

The hazard communication rule, also known as employee right-to-know, is alsovery important in infection control because of the myriad of chemicals. Mostemployers have improved at notifying their employees about the material safetydata sheet (MSDS) book and in how to read an MSDS. Employers have also done agood job at making employees generally aware of the risks that exposure tochemicals in the workplace can cause.

Many employers, however, fail to give the employee-specific andchemical-specific training the rule requires. It is not enough simply tosensitize employees as to the risks chemicals might cause. The employer mustdetermine the specific chemicals that each employee encounters in his or herwork. Each employee must then receive training on the hazards and properhandling of each chemical.

Many employers also forget that they must re-train employees when a newchemical is introduced into the workplace. Additionally, the employers mustre-examine their hazard communication program annually to look for changes inchemical use and changes in employee tasks. Even if nothing changes from year toyear, employee retraining should take place annually. Similarly, new ortransferred employees should receive chemical-specific training before startingtheir new duties.

The current tuberculosis rule is not much more than a respirator rule aimedspecifically at this disease. In late 1997, OSHA proposed a new tuberculosisrule that closely resembles the chemical-specific or material-specific rulessuch as the one for cotton dust. The proposed rule would require that theemployer make a determination of which employees or classes of employees haveexposure to tuberculosis and how that exposure occurs. The proposed rule wouldalso require an extensive exposure control plan outlining step-by-stepprocedures to minimize tuberculosis exposures by employees. The proposed rule,logically, includes a respiratory protection section, but it is significantlybeefed up compared to the current rule. The rule will require a very specificprocedure for medical monitoring of potentially exposed employees. Finally, itwould set out a system of signs, labels, and other warning methods for areaswhere exposure might take place.

This rule was proposed more than three years ago and it still has not becomefinal. Nonetheless, it will probably become a final rule in the not-too-distantfuture. The tuberculosis rule was a lower agency priority than the ergonomicsrule during the Clinton administration. The ergonomics rule was finally adoptedin Fall 2000, and the tuberculosis and other lower priority rules are stillwaiting. In fact, the ergonomics rule demonstrates the long life of someproposed rules--it was ten years in the making.

The proposed health and safety program rule also could impact infectioncontrol professionals. This proposed OSHA rule would require each employer toevaluate its workplace for health and safety risks and to devise ways toeliminate or (if elimination is not possible) reduce those risks. In otherwords, the health and safety program rule would mandate workplace safety andhealth auditing.

Presumably because the audit would become an agency requirement, OSHA'srecent policy preserving some level of confidentiality for today's audit reportswill no longer apply. In addition, by mandating audits, OSHA can potentiallyprevent use of the attorney-client privilege and other evidentiary privileges toprotect the confidentiality of audits and audit reports.

The health and safety program rule also purports to mandate "continuousimprovement." Through this requirement, the proposed health and safetyprogram rule focuses on the results rather than the employer's efforts. Onewonders, however, how far the government will push such a requirement. Must anemployer always have the newest and safest state-of-the-art equipment? Is suchan effort to keep up with new technology worth the capital expense, retraining,and administrative costs? If not, what allowance is made for the aging ofequipment?

Thus, the proposed health and safety program rule creates many more questionsthan answers. As a result, the new Bush administration may not make thisproposal a high priority. As demonstrated by the ergonomics rule, however, donot expect the health and safety program proposal to die. The agency will lookfor 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 inspectworksites after a fatality or an accident resulting in three or more workersstaying overnight in the hospital. (This is frequently referred to as a"fatal or catastrophic accident" or Fat Cat.) OSHA places theseinspections at the top of its priority list.

OSHA also is obligated to investigate any complaints by employees, givingsuch inspections the next level of priority below Fat Cats. Employee complaintsplay a major role in OSHA inspections where employees belong to a union or areconsidering joining. Employee complaints from non-union workplaces also merithigh-priority inspections from the agency, but the number of such complaints isusually lower. Worker complaints also supplement the Fat Cat system because mostaccidents do not send three employees to the hospital but only involve oneemployee (who may not stay overnight in the hospital). Still, such non-Fat Cataccidents frequently result in worker complaints, which then lead toinspections.

A member of the general public or an employee of a different regulatoryagency also can cause an OSHA inspection. If a member of the public sees anunsafe condition, a call to OSHA is likely to trigger an inspection, or at leasta telephone call to the employer. Similarly, a potentially unsafe conditionidentified 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 OSHAemployee 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 beon official business. He or she merely needs to witness the possible violationfrom a place where he or she has a right to be, such as visiting a friend orfamily member.

Finally, OSHA undertakes a number of inspections in a relatively randommanner. The resulting programmed inspections usually look at compliance withalmost every OSHA rule applicable at the worksite. The lottery system by whichworksites are chosen for programmed inspections is not completely random,however. Companies and industries with historically higher injury or illnessrates are more likely to be inspected. Further, OHSA has recently started toreview each worksite's particular injury and illness rate (as shown by theannual OSHA-200 logs and by workers compensation records) to target theworksites within each industry with the highest injury and illness rates.Additionally, OSHA headquarters now requires each area office to identify aparticular industry, type of hazard or type of worksite for special attention.Each area office's targeting plan is included in the selection process forprogrammed inspections.

The decision to allow OSHA onto the worksite should depend on whether theagency has a warrant to enter the site without consent. A Fat Cat incident andthe programmed inspection lottery will always sustain a warrant. Employeecomplaints, referrals from sister agencies, or the public, and OSHAself-referrals might sustain warrants, depending upon what they allege.Unfortunately, the decision whether to let OSHA onto the site is really ajudgment 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 theinspector should explain why the worksite was selected. Depending upon how itwas chosen, the inspection may be limited, although the employer probably willhave to take the initiative to set the limits. Programmed inspections have nolimit as to subject matter, but they should not become overly burdensome orunduly interfere with work. All other inspections may be limited to the issuesthat prompted the inspection. A Fat Cat inspection can be limited to the factssurrounding the accident. An employee complaint, agency or public referral, orself-referral can be limited to the complaint items, the referral items, or whatthe OSHA employee saw previously.

After the opening conference, the inspectors will conduct a walkaroundinspection. An employer representative should accompany each inspector, and anemployee representative is allowed to participate as well. In a unionizedcompany, the employee representative is easy to identify. In a non-unioncompany, employees may participate in the walkaround but usually choose not totake part.

The walkaround also can include the inspector's review of company documentson safety and health. Frequently, the document review takes place before theinspector visits the actual work area. Some of the OSHA rules contain verydetailed requirements for written plans and documentation. As a result, theagency's document reviews are becoming the source for a great number ofcitations.

The inspection ends with a closing conference at which the inspector willshare his or her impressions of the worksite's safety and health status.Frequently, the inspector will share with the employer (and any participatingemployee) 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 hersupervisor, and together they will determine whether the employer should becited. When the citations arrive at the worksite or office, each cited employerwill have three weeks in which to respond. Before the deadline, the employermust contest or settle the citations. Failure to do so will be deemed acceptanceof the citations as proposed by the agency.

The agency can deem citations serious, which means that any resulting injuryor illness would probably be very harmful or fatal to an employee. If the likelyharm is lower, the agency calls the alleged violation other than serious. Bothserious and other-than-serious violations can carry penalties up to $7,000. Ifthe employer had the same or a similar violation within the preceding threeyears, 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 recklessnesstoward its employees' safety, it can call a citation willful and seek a $70,000penalty.

State OSHA Programs

A number of states have the authority to implement their own OSHA programs inlieu of the federal program. While most such state programs have substantiverules similar (and often identical) to the federal rules, the states' citation,negotiation and appeal procedures can vary widely. An employer must determinefor each of its locations which government body has OSHA authority and what thesubstantive and procedural rules require.

How to Handle Inspections

During an inspection, an employer mainly should remember to be cooperativewith an inspector but not be an apologist. The employer should show an inspectorwhat the inspector has a right to see (the working conditions about which anemployee complained or another regulator or third person brought to theattention of the agency, the location of a fatal or catastrophic accident).However, the employer can stop the inspection from straying into other areas orexamining other issues except what the inspector can see in "plainview" while in an area he or she has a right to inspect. Similarly, theemployer's representatives should avoid making incriminating statements. Thequestion "How long has this violation been going on?" has many trapsand does not merit an answer.

An employer representative should accompany each inspector throughout theinspection; taking notes and photographs when appropriate. Whenever theinspector takes a photograph, the company representative should take theidentical photograph, standing shoulder to shoulder with the inspector ifnecessary. Likewise, if the inspector takes videotape, an employerrepresentative should take the identical videotape.

Finally, employers must handle the inspectors' interviews with employeescarefully. OSHA is quick to point out that employee interviews are meant to beprivate. That privacy right, however, is not the agency's but the employee's. Ifthe employee wishes a coworker, an employer representative, or a third person toattend 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 aninspector.

After an employee finishes an interview with OSHA, the employer should askthe employee to talk with a management representative. The managementrepresentative should ask the employee what the inspector(s) wanted to know andwhat the employee said. The company should not force the employee to talk.Similarly, if the employee wants someone else present during the managementdebriefing, management must cooperate. Above all, the company cannot punish anemployee for his or her decision. It should not matter whether the employeetalks 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 haswithin it a training requirement. When carrying out the training, employersshould carefully document what was discussed and who attended. Withoutdocumentation, the employer will have no way to prove that the trainingoccurred.

Similar to the training requirements, many rules required the designation ofa competent person to determine when conditions are safe and the properprocedure has been used. Employers should designate and train competent personsto take charge of such tasks and should designate enough of them to avoid delaysat different work areas.

Employers must enforce safety rules that apply to their employees. The agencyexpects "graduated enforcement" with penalties increasing for repeatedviolations. For example, the first violation of a safety rule might lead to averbal warning. The second violation might lead to a written warningcountersigned by the employee, a third violation to a day's suspension withoutpay, a fourth violation to a week's suspension without pay, and a fifthviolation to termination. While OSHA would like to see such a graduated systemstrictly enforced, the realities in a workplace make implementation difficult. Asystem of graduated punishment also conflicts with the positive reinforcementefforts that many employers are using to encourage "good" employeebehavior in many areas, including health and safety.

Unfortunately, most OSHA rules cannot be satisfied with a one-time fix. Asafe workplace requires constant diligence. Accordingly, a program of frequentself-inspection is recommended. This obviously requires a close knowledge of therules and their implementation. Because any such audit could be a "roadmap" of an employer's OSHA violations, I also suggest a great deal of carein documenting inspection results.

Further, an annual in-depth examination of the employer's entire health andsafety program by an outside OSHA attorney is recommended. The attorney can, ifnecessary, engage the services of a safety consultant. As part of his or herlegal advice to the employer, the attorney can provide detailed, franksuggestions on improving the health and safety program, protected fromdisclosure 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 healthprograms and their compliance with regulations. Under OSHA's policy, inspectorswill request copies of audit reports (or other information from audits) onlyinfrequently. The inspectors are not supposed to ask for the audit report as away to find violations. They should request an audit report only after findingsome separate evidence of a violation. The agency will then review the auditreport to determine if penalties against the employer should be increased ordecreased.

If the violation was found by an audit, the employer eliminated the violationand took steps to prevent its recurrence before the inspection (or before theaccident or complaint that gave rise to the inspection), then the agency is notsupposed to cite that particular violation. (Absent an audit, OSHA can cite anemployer for any violation within the previous six months, even if the violationwas eliminated before OSHA's inspection.)

If an audit finds a violation, the employer has taken--but not yetcompleted--efforts to eliminate the violation and has taken interim steps toreduce employee exposure, then the agency may cite the employer for a violationbut will not classify it as willful. Instead, OSHA will reduce the proposedpenalty for the company's good faith efforts.

If the employer found a violation in an audit but failed to take correctivesteps, the audit would probably be used to demonstrate the employer'swillfulness, greatly escalating penalties for the violation. (This is not statedin the policy, but is a possible inference from the policy's provisions.)

Even though OSHA now seems to grant some forgiveness to employers forconducting self-audits, employers still should conduct such audits in a way thatinvokes the attorney-client privilege against disclosure. Under OSHA's policy,the agency judges in hindsight whether an employer acted in good faith andadequately responded to audit findings. Thus, at the time an audit is disclosed,the employer does not know how OSHA will treat the audit. Accordingly, auditsshould be kept confidential. Then the employer can choose when, how, and whetherto make a disclosure.

Jim Koewler practices OSHA and environmental law with Kahn, Kleinman,Yanowitz & Arnson Co., L.P.A. in Cleveland, Ohio. Koewler gratefullyacknowledges the help of Lorrie Sass, also of Kahn Kleinman, and of NancyGrannis, of Media First Public Relations, in preparing this article.



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