OSHA Update

1. OSHA Update Brad Hammock March 11, 2009

2. “New Sheriff in Town” Labor Secretary Solis pledges to put more investigators back in the Occupational Safety and Health Administration (BNA Daily Labor Report, 40 DLR A-1, March 4, 2009)

3. Topics • OSHA’s Field Operations Manual • What to expect in the Obama Administration for occupational safety and health in the health care industry • Unions and facility safety and health issues

4. OSHA Field Operations Manual

5. Background • Replaces OSHA’s Field Inspection Reference Manual (FIRM) • “Revision of OSHA’s enforcement policies and procedures manual that provides the field offices a reference document for identifying the responsibilities associated with the majority of their inspection duties.” • Over three hundred pages

6. Background (cont’d) • Over two-and-a-half years in the making • Web based and more user friendly than FIRM • Intent is not to make substantive changes to OSHA enforcement practices, but to update and compile existing enforcement guidance

7. Key Aspects of FOM • Emphasis on safety and health systems • Request copy of written certification for PPE assessment • At start of each inspection, the CSHO shall review the recordkeeping logs for three prior calendar years

8. Key Aspects of FOM (cont’d) • General Duty Clause Citations • Expansive list of examples of employer and industry recognition • Employer Recognition • Actual employer knowledge by written or oral statements of managers, company memorandums, safety work rules, manuals, SOPs, collective bargaining agreements, near misses, workers’ compensation reports, previous citations, employee complaints or grievances, safety committee reports, an employer’s own corrective actions

9. Key Aspects of FOM (cont’d) • Industry Recognition • Safety or health experts, evidence of implementation of abatement by other members of industry, manufacturers’ warnings, literature relevant to the hazard, statistical or empirical studies (including studies done by employee representatives, the union, or other employees), government and insurance studies if the employer or the employer’s industry is familiar with the studies and recognizes their validity • State and local laws or regulations that apply in the jurisdiction and are enforced against the industry (however, corroborating evidence of recognition recommended) • If industry participated in drafting national consensus standards, this can constitute industry recognition; otherwise private standards normally shall be used only as corroborating evidence of recognition

10. What to expect . . .

11. What to expect . . . • WHERE HAVE WE BEEN? • WHY ME? • WHAT SHOULD I EXPECT?

12. WHERE HAVE WE BEEN? • OSHA Issued Comprehensive Guidance on Pandemic Influenza Preparedness and Response for Healthcare Workers and Healthcare Employers • Employers Must Now Perform Annual Fit Testing of Respirators for Occupational Exposure to Tuberculosis • Employers, with Limited Exceptions, Must Pay for All Personal Protective Equipment

13. WHERE HAVE WE BEEN? (cont’d) • Bloodborne Pathogens Interpretations • Q104 needle removal device could be considered as an alternative to prohibition on bending, recapping, or removal of a sharp • Use of Fluvirin® device with an affixed, unprotected needle violates 29 CFR 1910.1030(d)(2)(i) • Employee cannot waive right to have untested blood (for HIV) maintained for 90 days • Use of restraining mechanisms for sharps containers not required • Bloodborne pathogens trainer does not need to be “physically” in the classroom

14. WHERE HAVE WE BEEN? (cont’d) • Site-Specific Targeting 2008 • SST inspections for nursing and personal care facilities to focus on ergonomics, bloodborne pathogens, tuberculosis, and slips, trips, and falls

15. WHY ME? • Injury and Illness Incidence Rates in the Health Care Industry for 2007 • All of Private Industry – 4.2 • Hospitals – 7.7 • Nursing and Residential Care Facilities – 8.8 • Key Issues on Organized Labor’s Agenda will Target the Health Care Industry • Pandemic Flu • Safety and Health Management Systems • Ergonomics

16. WHAT SHOULD I EXPECT? • Pandemic Flu • Safety and Health Management Systems • Ergonomics

17. Pandemic Flu • Health Care Industry is Front and Center • OSHA Guidance Document Already Issued • Congressional Legislation to Require a Mandatory Standard

18. Safety and Health Management Systems • Safety and Health Management Systems • OSHA Preparing Revised Guidance • Serve as a Basis for Mandatory Rule?

19. Ergonomics • Clinton Administration Rule Overturned by Congress and President Bush • Ergonomics Guidelines for Nursing Homes • No. 1 Priority for Organized Labor • Health Care Industry will be a Focus of Efforts

20. Unions and facility safety and health issues

21. Unions and facility safety and health issues (cont’d) • Health care industry target of organizing drives • Unions will use safety and health issues in organizing efforts • Employers should proactively address safety and health by: • Involving employees in safety and health issues • Implementing safety and health systems

22. Questions? Brad Hammock Attorney at Law Jackson Lewis LLP 703-483-8316 hammockb@jacksonlewis.com