Archive for: OSHA – General

Bipartisan bill passes Senate Appropriations Committee, could preserve OSHA funding

By: September 8th, 2017 Email This Post Print This Post

Democrats and Republicans on the Senate Appropriations Committee came together this week to pass a budget plan that would keep federal OSHA funding at the same level in fiscal year (FY) 2018 as is today.

The bill, which addresses spending by Labor, HHS, Education and related agencies, calls for the Labor Department to be funded by $12 billion overall—that’s a slight cut of $61.5 million or about 0.5% from the funding level in FY 2017—according to a summary released by the committee’s Republican members. It passed by a vote of 29-2.

“For the second year in a row, the committee has worked together in a tough fiscal environment to pass a bipartisan bill that reflects Americans’ priorities,” said Sen. Roy Blunt (R-Mo.), chairperson for the subcommittee on Labor and HHS appropriations, in a statement.

Sen. Patty Murray (D-Wash.), ranking member of the subcommittee on Labor, HHS, Education, and related agencies, said in a separate statement that she’s pleased to see bipartisanship at work, though there’s more to be done.

“While I support this bill as a compromise and the best we can do given the inadequate investment levels we’ve been given, it underscores the need for us to keep working toward another budget deal to increase investments in people, communities, and economic growth,” Murray said. “But this bill is a good first step and a strong foundation for continued bipartisan work.”

Labor agencies would fare far better under this Senate appropriations bill than the version under consideration by the House, which proposed even deeper cuts for OSHA’s enforcement budget than President Trump had requested, as Bloomberg BNA’s Bruce Rolfsen reported in July.

Jordan Barab, a former OSHA official and an outspoken critic of the Trump administration, said a flat budget (i.e., no increase in funding) could be the best-case scenario “considering who controls the White House and Congress.”

“Although we’ll end up with strikingly different bills in the Senate and the House, the expectation is that, because the Senate bill is a bi-partisan measure that both parties have agreed on, the current funding is likely to be maintained if there is a final bill,” Barab wrote on his blog, Confined Space. If, he added, Congress were to resort to a continuing resolution rather than passing a final bill, that too would keep funding at about the same levels as they stand today.

California hospital where worker was murdered still an example of violence plaguing healthcare

By: August 31st, 2017 Email This Post Print This Post

Six years after a psychiatric technician at Napa State Hospital was murdered by a patient, regulators within the California Division of Occupational Safety and Health (Cal/OSHA) approved a new rule last fall to protect healthcare workers from on-the-job violence.

The rule took effect in April, and I covered the story in our May edition of Briefings on Hospital Safety, noting that federal OSHA officials were asking whether drafting a similar nationwide standard would be appropriate and worthwhile. Since then, the Trump administration has pared back OSHA’s regulatory agenda and classified the initiative to prevent workplace violence in healthcare settings as among the agency’s “long-term actions,” with no date set for the initiative’s next action item.

Meanwhile, the workers at Napa State Hospital continue to report frequent assaults against employees and patients alike. Cal/OSHA is investigating an attack on May 9, 2017, that left one worker with serious bodily injuries, the Napa Valley Register reported this month. Officials did not specify the circumstances of the attack, but a 26-year-old man arrested the following day had reportedly punched a staff member multiple times in the head and face, with a closed fist, before lifting a medical table above his head in an effort to use it as a weapon against the worker.

A judge ordered the hospital to release unredacted documents about the incident to Cal/OSHA after complaints that previously released documents “were so heavily redacted that they provided no meaningful information” to state investigators, the Register reported.

There were 886 assaults on staff reported at Napa State Hospital in 2015, according to the California Department of State Hospitals violence report for 2016. That figure was about the same in 2014 and 2013, but it was higher in 2012, when 1,048 assaults on staff were reported.

The 886 assaults on staff in 2015 are in addition to the 1,053 reported assaults on patients.

“That’s 1,939 reported assaults and who knows what wasn’t reported,” Michael Bartos, MD, former medical chief of staff for Napa State Hospital, wrote in a letter to the Register editor last week.

“A facility with 1,200 patients that reports over 1,000 patient assaults in a single year could be considered somewhat less than a healing environment and with almost 900 staff assaults might not be the best place to work, even with generous state benefits,” Bartos added. “Despite the problems, the majority of front line staff including nurses, psychiatry technicians, social workers, rehabilitation therapists, psychologists and psychiatrists, are dedicated professionals doing their best under difficult circumstances.”

OSHA buries worker fatalities list

By: August 25th, 2017 Email This Post Print This Post

What had been featured prominently on the agency’s homepage is now shorter and harder to find

Earlier this week, if you had navigated to OSHA.gov in search of information about the U.S. Department of Labor’s (DOL) agency committed to improving the safety of American workers, you would have been greeted by a prominent ticker listing recent workplace fatalities. Each entry had a date, state, name, and brief explanation of how the worker died.

That item was removed Friday from the OSHA website, however, in an effort to make the public data more “accurate and useful,” Politico reported, citing a DOL spokesperson.

“The previous listings included fatal incidents that were outside federal OSHA jurisdiction, not work-related, or the employer was not cited for a violation related to the incident,” Mandy Kraft said in a release. “We are continuing to review all of the data to ensure it is accurate and useful to our stakeholders.”

Critics were quick to blast the change. Jordan Barab, a former OSHA official under the Obama administration, called it a “brazen attempt to hide from the American public the extent of workplace fatalities in this country.”

In place of the workplace fatalities ticker, the updated OSHA site now lists information on training, compliance assistance, and cooperative and recognition programs. Then there’s an introduction to a new ticker praising specific companies by name: “Below are just a few examples of our cooperative programs that work with and recognize employers who create safe workplaces,” it says.

“This list will soon get pretty stale,” Barab wrote. “There are a lot more workers killed on the job every month than new VPP, SHARP or Alliance participants in an entire year.”

Representatives with DOL and OSHA did not immediately respond Friday to requests for comment.

Update (8/28/17): An OSHA spokesperson responded in an email Friday with the same comments reported by Politico. “Previous entries [in OSHA’s fatalities data set] remain available in the original format on OSHA’s data and statistics page,” the spokesperson noted. The Wall Street Journal reported Sunday that the U.S. Chamber of Commerce had asked OSHA to revise its fatalities-reporting practices.

Potential security breach prompts suspension of OSHA’s new injury-tracking portal [UPDATED]

By: August 17th, 2017 Email This Post Print This Post

[Editor’s note: Access to OSHA’s data portal has been restored. See updates below.]

Just two weeks after its already-delayed launch, an online portal designed to collect data on worksite injuries has been suspended amid information security concerns.

Use of the portal, OSHA’s Injury Tracking Application (ITA), was supposed to become mandatory for certain employers on July 1, 2017, pursuant to the controversial electronic recordkeeping rule. But officials signaled back in May that they would be postponing the deadline, and they formally did so in June—giving the approximately 466,000 affected employers five additional months, until December, to begin using the application.

The ITA finally went live August 1, a full month after its original implementation date, as labor attorney Tressi L. Cordaro with Jackson Lewis P.C. noted Monday in a blog post. The ITA was suspended, however, on Tuesday after the Department of Homeland Security (DHS) notified the Department of Labor (DOL) that user information might have been compromised, Cordaro added Wednesday.

Those who tried accessing the portal Thursday morning were greeted with a message in red lettering: “Alert: Due to technical difficulties with the website, some pages are temporarily unavailable. To file a complaint with OSHA or to ask a safety and health question, call 1-800-321-6742 (OSHA).”

Bloomberg BNA’s Ben Penn reported Wednesday that a DOL official didn’t identify the one company involved in the potential breach. While the portal will eventually be used to collect detailed employee records, experts told Penn that the information currently being collected isn’t sensitive. That being said, the snafu could betray a level of unpreparedness in the ITA rollout.

“This agency has a lot of experience with doing this—and doing it right,” said Deborah Berkowitz, a senior fellow with the National Employment Law Project who served as OSHA chief of staff under former President Barack Obama, according to Penn’s report. “This is a brand new application, and because of the new administration, it was never tested.”

Berkowitz added that OSHA should take the time offered by this suspension to “get it right” and protect the database.

Representatives with DOL and OSHA contacted via email and telephone were not immediately available Thursday to answer questions about the suspension and possible breach.

Update (8/25/17): The application was back online as of Friday, August 25, 2017. I have requested additional details on what led to the outage and will publish what I find.

Update (8/28/17): An OSHA spokesperson said in an email that the National Information Technology Center conducted a scan and confirmed that none of the ITA data had been compromised. “As part of this review, the entire OSHA website was scanned and improvements implemented,” the spokesperson said. Public access to the portal was restored Friday, as OSHA continues its regular security monitoring processes.

Don’t fall prey to imposters peddling OSHA posters

By: July 10th, 2017 Email This Post Print This Post

People posing as OSHA compliance officers have been trying to dupe employers into paying for posters they can get from the government for free, the Utah Labor Commission warned recently.

The scamsters have contacted Utah businesses in person, on the phone, and even in writing, threatening inspections, citations, and fines, unless the employers immediately pay for consultation and training services and the posters. These tactics have popped up in other states as well.

“We encourage employers to research and ask questions about the companies or individuals offering to sell OSHA posters,” said Utah Labor Commissioner Jaceson Maughan in a statement. “They should also know that we provide the posters at no charge.”

The posters, which businesses must display in a prominent location, are available for download from the commission’s website. Real OSHA compliance officers in Utah carry identification and do not collect money, the commission noted.

Last year, a Florida man used his company to dupe newly opened small businesses out of at least $1.3 million, according to the U.S. Federal Trade Commission (FTC). The company sold free posters for $179.99 to $189.99, then made it difficult for customers to obtain refunds, according to the FTC’s complaint.

OSHA delays controversial electronic recordkeeping rule

By: June 27th, 2017 Email This Post Print This Post

Compliance date scheduled for next week bumped five months down the road.

I mentioned last month that OSHA officials had signaled their intent to delay a new electronic recordkeeping rule that’s being challenged in more than one federal courtroom. Today, less than a week before the July 1 compliance date, they formalized that proposal.

The U.S. Department of Labor (DOL) announced that the new compliance date would be December 1, giving OSHA five months more to review “questions of law and policy.”

The rule would require about 466,000 employers nationwide to file their Form 300A summaries of workplace injuries and illnesses with OSHA electronically. It has been controversial in large part because employers dislike the idea that OSHA plans to publish some of their injury and illness data online.

Employers have also opposed the rule’s prohibition of incentive and testing programs associated with injury reporting, as Bloomberg BNA’s Bruce Rolfsen explained. Workers groups contend that ending such programs will protect employees from being ostracized by their employers for voicing safety concerns.

The deadline to submit public comment on the proposed deadline extension is July 13.

Workplace violence citation settled, but debate rages on

By: June 19th, 2017 Email This Post Print This Post

One of the largest public hospitals in the country persuaded OSHA to back off of a citation it had issued regarding the hospital’s workplace violence prevention program, but debate over the program’s adequacy rages on.

Bergen Regional Medical Center (BRMC) in Paramus, N.J., pushed back against criticism from a former OSHA official who described the resolution of BRMC’s case as a “cave-in” by the Labor Department, as I mentioned last week. Since then, the former official has responded to the pushback—and discovered that the hospital’s attorney is readily willing to spar about it on Twitter.

Jordan Barab, who served as deputy assistant OSHA secretary during the Obama administration, responded in a blog Friday to BRMC’s claim that he must think “that even a single instance of workplace violence” means a facility’s prevention program is inadequate.

Not true,” Barab wrote, “and BRMC unfortunately had far more than a single case of workplace violence. In fact, the union reports that so far this year, 62 incidents have been reported to a workplace violence committee.”

Barab said he stands by his contention that the hospital, despite fending off the OSHA citation, has serious workplace violence problems. He mentioned the BRMC dispute Thursday evening in a tweet: “They hate me. They really hate me.”

That prompted a response Friday morning from Eric J. Conn, an attorney BRMC hired in 2015 to contest the OSHA citation. “Just want honesty,” Conn wrote. “Hospital PROVED it didn’t violate the law, yet Obama-era OSHA reps who weren’t there to see the proof still slander them.”

Read the rest of this entry »

Unions try to help defend OSHA rule; Labor Dept. objects

By: June 9th, 2017 Email This Post Print This Post

Defendant joins plaintiffs in opposing third-party motion to intervene

Two unions offered to help the U.S. Department of Labor defend an Obama-era OSHA rule being challenged in federal court. But the government has formally objected, arguing that the unions have no right to step into the legal dispute between it and private industry groups.

The move has stoked speculation that the Trump administration could be looking to further relax enforcement of existing regulations. That worries United Steelworkers (USW) and the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO).

“In this case, there is no guarantee that the government will defend the New Rule forcefully in this Court,” the unions wrote in their March motion to intervene, noting that an executive order signed the month prior calls for a general reduction in federal regulation.

The rule in question, which was finalized last year, requires about 466,000 employers to file injury and illness logs with OSHA electronically, so the agency could then publish the data online. Industry groups filed multiple lawsuits, and federal officials said last month they would postpone a July 5 deadline indefinitely—a delay the unions likely saw as an omen.

“There is even the possibility that the new Administration might attempt to use this litigation as a vehicle to weaken, rather than to uphold, the New Rule,” the unions wrote in their March motion. That could be described as a “sue-and-settle” tactic to change the rule while bypassing certain procedural steps typically required for such changes, they said.

Government attorneys responded by acknowledging the unions’ concern that the regulation could be softened or abolished.

“But that argument is a red herring,” the government wrote last month. “Any changes to the Rule would need to be made through the rulemaking process, not this litigation.”

The unions seemed pleased, though not totally placated, by the government’s commitment to traditional rulemaking channels.

“We are heartened to learn that OSHA accepts the fact that, under applicable law, any changes to the Rule can only be made following notice and comment rulemaking and not through this litigation,” the unions wrote in reply June 8. “But, the distinct possibility remains that OSHA’s defense of the Rule may not be as robust on some issues as on others.”

Randy Rabinowitz, an attorney representing the unions, told Bloomberg BNA that she could not recall any other case in which the Labor Department declined help from a union seeking to assist in defending an OSHA rule.

The unions made two parallel arguments in support of their motion to intervene: (1) they have a legal right to do so, and (2) the court has the discretion and should permit them to do so. The plaintiffs objected to both claims; the government objected only to the first claim and took no position on the second.

Judge David L. Russell of the U.S. District Court for the Western District of Oklahoma has given no indication of his timeline for a ruling on the motion.

Safety of healthcare workers and their patients ‘two sides of the same coin’

By: May 30th, 2017 Email This Post Print This Post

Feds push Safe+Sound Week: June 12-18, 2017

Healthcare employers should promote worker safety for a number of reasons, not the least of which being that keeping doctors and nurses safe helps to keep patients safe as well, according to federal OSHA officials.

“Worker safety and patient safety really are two sides of the same coin,” OSHA Deputy Director Andy Levinson said during a webinar last week encouraging participation in Safe + Sound Week 2017. The nationwide event, scheduled for June 12-18, aims to promote health and safety programs on the local organizational level.

“In our work with healthcare institutions, particularly hospitals, there is good linkage between safety health programs and the high-reliability culture activities that are going on in healthcare,” Levinson added, responding to a question from a nurse in Louisville, Ky.

Organizations of all sizes and industries are encouraged to participate in the special emphasis week by coming up with one or more ways to demonstrate their commitment to safety. These could include public events, employee training sessions, new graphics and signs, social media posts, and more.

Major partners for the event include the American Association of Occupational Health Nurses (AAOHN), American Nurses Association (ANA), Association of Occupational health Professionals in Healthcare (AOHP), The Joint Commission, and others.

Trump’s budget largely spares OSHA, would gut other programs

By: May 24th, 2017 Email This Post Print This Post

This week, the White House released its budget request for Fiscal Year 2018, titled “A New Foundation For American Greatness.” The proposal calls for tax cuts, a 10% increase in military spending, and $1.6 billion for a wall along the border with Mexico, while cutting deep into Medicaid and other programs for the poor.

Although the document calls for a nearly 20% cut to the Labor Department’s budget, it largely spares OSHA programs from the chopping block, though it could still inhibit OSHA’s operations. The Susan Harwood Training Grants program is the only OSHA program up for elimination under President Donald Trump’s proposed budget, a move that would save $10.5 million, Bloomberg BNA reported.

The balanced budget is built upon what New York Times reporter Julie Hirschfeld Davis described as “an improbable promise” of 3% economic growth.

If the proposed budget were to pass as written—a move that would be highly unlikely, since Congress has historically made significant alterations to the president’s plan before finalizing it—then OSHA’s budget would be cut about 2% from $552.8 million in Fiscal Year 2017 to $543.3 million in Fiscal Year 2018.

Even a modest cut, however, could significantly impair OSHA’s ability to enforce workplace safety regulations, especially given the White House’s deregulatory push, according to Jordan Barab, MA, who served as an OSHA deputy assistant secretary under former President Barack Obama.

“The administration may regret that when they realize that it takes as many or more resources to roll back standard[s] as it takes to issue them in the first place,” Barab wrote in a blog post Tuesday. “And remember that because of inflation and other increasing expenses, a flat budget is actually a budget cut. OSHA will have less staff and do fewer inspections next year.”

Another factor to consider is how the forthcoming arrival of new appointees could influence spending and policy priorities.

“This looks largely like a placeholder budget request which is to be expected since the new administration has not had a change to get deeply engaged in the agency’s activities,” Marc Freedman, executive director of labor law policy for the U.S. Chamber of Commerce, told Bloomberg this week.

The perspective brought to work by individuals running OSHA will be more important than the final dollar amount, Freedman added. Secretary of Labor Alexander Acosta, whom Trump nominated after Andrew Puzder withdrew his name from consideration, has been on the job less than a month.

 

OSHA to delay Form 300A electronic submission requirement

By: May 18th, 2017 Email This Post Print This Post

Certain employers have been preparing for a new requirement that they submit an annual Form 300A, which summarizes work-related injuries and illnesses, to the government electronically by July 1, 2017. But that deadline is likely to change.

Citing an email from OSHA, labor attorney Tressi L. Cordaro with the firm Jackson Lewis P.C., wrote in a blog post Wednesday that officials had announced they intend to delay the compliance date, which had been set by a final rule issued a year ago.

“Currently, we do not have any additional information about the timeline for this,” the email says. “We will let you know as soon as additional information, including a proposed extension date, is available.”

An OSHA spokesperson confirmed Thursday that there’s still no information available on the new timeline being proposed, but he noted that an announcement should be forthcoming in the Federal Register. A recent update to OSHA’s webpage explaining the rule confirms the delay and states that the administration is not currently accepting submissions electronically.

The new rule requires certain employers—including establishments with 250 or more employees and establishments with 20-249 employees in certain high-risk industries, such as ambulatory healthcare services, general medical and surgical hospitals, and other healthcare settings—to take the injury and illness data they’re already required to collect and then submit it to OSHA electronically, with some of the data to be released publicly online.

“Behavioral economics tells us that making injury information publicly available will ‘nudge’ employers to focus on safety,” the OSHA website explains. “And, as we have seen in many examples, more attention to safety will save the lives and limbs of many workers, and will ultimately help the employer’s bottom line as well.”

Interestingly, the delay comes as multiple lawsuits challenging the final rule’s legality wind their way through federal court. Last month, a judge overseeing one of the cases set a deadline in the court proceedings for July 5, indicating that he would not rule on the rule’s legality before its compliance date, Bloomberg reported.

Cordaro declined to comment beyond her blog post, citing the fact that her team represents multiple petitioners challenging the rule.

Bloomberg reported that the rule would affect about 466,000 employers nationwide.

Form 300A

Form 300A

When does workplace violence violate OSHA’s General Duty Clause?

By: May 5th, 2017 Email This Post Print This Post

It remains unclear whether the feds will follow California’s lead in implementing an occupational health and safety standard on workplace violence prevention in healthcare settings, despite a largely positive response from those who commented on OSHA’s recent request for input on the idea.

The federal standard could specify which steps employers must take to protect healthcare workers and impose fines for noncompliance. Even without the nationwide standard, however, it’s already possible for OSHA to penalize healthcare employers anywhere in the country for failing to prevent violence against doctors, nurses, and other healthcare professionals.

That possibility comes, of course, from the OSH Act’s General Duty Clause, which requires that an employer keep its workplaces “free from recognized hazards that are causing or likely to cause death or serious physical harm to [its] employees.” But what exactly does it take to support an allegation that an employer whose workers have been victimized by violence should be held accountable, to some degree?

Clarence Webster III, JD, with the firm Bradley Arant Boult Cummings LLP, addressed that question this week in a blog post, citing a directive that took effect in January. The directive guides OSHA officials on when and how to issue citations in response to workplace violence, Webster explained.

“In determining whether to initiate an inspection, the Directive sets forth a list of known risk factors, none of which would individually trigger an inspection,” Webster wrote.

These risk factors include employment in healthcare, working alone or in small numbers, late-night or early-morning shifts, working in high-crime areas, and others. If your workplace has some of these factors, there are four questions OSHA must answer in the wake of a violent incident to determine if you violated the General Duty clause:

  1. Did the employer fail to keep its workplace free of a foreseeable workplace violence hazard?
  2. Was the hazard explicitly recognized or recognized in a high-risk industry?
  3. Was the hazard causing or likely to cause death or serious physical harm?
  4. Was there a feasible and useful means by which to correct the hazard?

Answering “yes” to all four questions above–which align loosely with the four-pronged test articulated last year in a Government Accountability Office report on workplace violence prevention—would tend to support an alleged violation of the General Duty Clause. (An affirmative response to fewer than four of the above questions could still warrant a “hazard alert letter” with recommendations to improve safety.)

For any employers looking for practical steps to minimize risks, there is an 11-page list in Appendix A of the directive. It outlines engineering and administrative controls, and it provides a table with recommended applications in various healthcare settings.

Webster said one of the keys to preventing workplace violence is making sure that your employees understand that they should report potentially violent behavior, not tolerate it.

“However, when you get to the suggested engineering and administrative controls,” Webster added, “be sure to balance them against other laws governing your workplace, including state, local, and federal privacy laws and safety and building codes and standards.”

For more on the prospect of a federal OSHA standard on workplace violence prevention in healthcare, see the June edition of HCPro’s Briefings on Hospital Safety newsletter.

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