OSHA in Healthcare – What to do if OSHA Knocks at Your Door

OSHA has recently named the healthcare industry as one of a handful targeted for intensified safety and health inspections in 2005.1 According to this directive, their inspections will focus primarily on ergonomic hazards relating to patient handling, exposure to blood and other potentially infectious materials, exposure to tuberculosis and slips, trips, and falls. In fact, nursing and personal care facilities make up the highest concentration of worksites on the targeted list for 2005. In addition, the Justice Department has recently joined forces with OSHA to identify and single out companies and their officers for criminal prosecution in addition to monetary fines for the nations most flagrant workplace safety violators.2 In light of this directive and the increasingly harsh nature of the penalties sought, the healthcare industry must prepare itself to handle the dramatic increase in the frequency of OSHA inspections.

The purpose of this article is to provide healthcare administrators and their attorneys a practical, hands-on guide to effectively handle an OSHA inspection. This includes a discussion of your rights during an inspection, what to expect following an inspection, and discussion of some of the more pragmatic issues involved in appealing an OSHA finding.

What triggers an inspection?

Under the Occupational Safety and Health Act of 1970 (the Act), the Occupational Safety and Health Administration is authorized to conduct workplace inspections and investigations to determine whether employers are complying with standards issued by the agency for a safe and healthful workplace. Workplace investigations and inspections are conducted by OSHA compliance officers. Usually, the first notification of an inspection is an OSHA compliance officer knocking at your door.

An OSHA inspection is usually triggered by one of a several events. First, an inspection may be triggered by a targeted inspection. As noted above, a particular industry may be identified as one which the Department of Labor believes constitutes a disproportionate safety and health risk to employees as compared to other industries. For those industries, OSHA selects several employers within a particular SIC code, at random, and simply drives to the establishment, and knocks on their door. There will be no warning or notification prior to an inspection.

Not all inspections are “targeted” inspections. Many inspections conducted by the Department are performed on employers whose SIC codes are chosen at random. So, even if you are not an employer on the targeted list, you still may be picked for an inspection.

OSHA may also initiate an inspection after an employee complaint about a specific safety and health issue. In that instance, an employee may submit a concern to OSHA, and OSHA will anonymously evaluate that complaint for its validity. Not surprisingly, this is a favorite harassment technique for disgruntled employees, and ex-employees. Interested third parties may also make complaints in the same fashion (e.g. a physician or family member of an employee.) This is a favorite harassment technique of disgruntled competitors.

Perhaps the most obvious indicator that you will be visited by an OSHA compliance officer is if you experience an occupational related fatality or have three or more employees hospitalized as a result of an injury or exposure related to their employment. It is important to recognize that in these two situations, the employer has an obligation to report the incident to OSHA, in person or by phone, within 8 hours of the incident. 3 Once reported, OSHA is obligated to visit your facility within 24 hours. Failing to report the incident timely will create exposure to additional fines.

The last event that will trigger an OSHA inspection is negative workplace related exposure in the media. OSHA is a political entity which answers to the public. OSHA administrators feel obligated to address any concerns that receive press coverage, even if there is no immediate public health or safety concern. For instance, if your company is reported in the newspaper for experiencing a large gas leak that necessitates the evacuation of a significant portion of your facility, you better prepare for an OSHA visit.

What can I do to prepare for an inspection, before the compliance officer shows up?

In general, OSHA will not give advance warning of an inspection. In fact, OSHA is authorized to issue criminal penalties to anyone who gives an employer advance notice of an inspection.4 They rely on the element of surprise. An astute employer will make preparations today for what to do in the event a compliance officer knocks on your door.

First, order the official employee rights poster from OSHA’s website (DOL Poster Package–ID# 5049), and post it immediately in areas where workers congregate.5 If you have a high number of Spanish speakers, it would be advisable to order the Spanish version as well (DOL Poster Package–ID# 5052.) It sounds ridiculous, but employers have been cited for failing to post the required posters.

Next, implement an Action Plan to execute in the event of an inspection, and establish a company Occupational Safety and Health Officer (the Company OSH Officer) whose responsibilities it is to assure the plan is carried out in the event of an inspection. That officer should preemptively determine which standards and regulations apply to your facility, and make sure all required written programs are up to date. There are a few programs that are required for almost every facility, including hazard communication, lock-out-tag-out, and fall protection. For the healthcare industry, several policies are also on the short list of must haves, including blood borne pathogens, needle stick prevention, etc. Make sure those policies are up to date because OSHA will likely request a copy of them and request assurance your employees are trained in them.

You should also make sure that the OSHA required recordkeeping is up to date, and all records are readily accessible. You should require that the OSHA records of workplace injuries (OSHA 300 log) are updated monthly and kept in the same office as the employee personnel files.

It is also a good idea to do some housekeeping. If you have any activities that seem to regularly create a mess, take extra time to make sure those areas are clean if you suspect that you may be visited by OSHA. For instance, if you have a janitorial closet that always seems to be cluttered, make sure you take the time to have the area cleaned up, remove chemicals off of the floor, and you have access to the Material Safety Data Sheets that would apply to each chemical. Employers are regularly cited for benign chemicals such as WD-40, Go-Jo hand cleanser, Clorox and ammonia, for failing to have the required MSDS information. If for any reason you have 55 gallon drums of material at your facility, make sure they are labeled, and appropriately stored.6

OSHA is at my door – now what do I do???

1. To Warrant or Not to Warrant.

When an OSHA compliance officer shows up at your door, politely invite them in and ask if they would like a cup of coffee. Do not panic. You should not treat this as an adversarial process at this point. Ask the Officer to have a seat in a private area while you contact your company OSH Officer to respond to the situation. This sounds like common sense, but you would be surprised at how some companies have handled the situation. OSHA’s representatives will generally wait for a reasonable period of time before becoming agitated. Typically, they will ask for several items (discussed below), so if the corporate OSH officer takes a few minutes to get to your facility, offer to start obtaining those items for OSHA while they wait.

Only one person should have principal communication with OSHA. That person could be the company OSH officer, or the company attorney. That person should be charged with providing written documents to OSHA as well. That person should be able to know exactly what was said to OSHA, what was given to OSHA, and what OSHA has seen. Otherwise, there will be too much fragmented information, and no single person will have the complete story.

The first visit by the OSHA compliance officer is a fact finding mission. He knows very little about the situation, and is there to do a big-picture investigation called a “walk around.” If an employee complaint is the reason for the inspection, the employer will be given a copy of the employee complaint, although the name of the employee will be withheld. In addition to a walk around of your facility, OSHA may ask to interview employees, and audit corporate records relevant to safety and health. Before allowing a walk around, the corporate OSH Officer should ask to see the compliance officer’s credentials, request a business card and ask for a phone number. In this “opening conference”, the corporate OSH Officer should ask the OSHA representative to state the purpose of the visit (employee complaint, targeted inspection, accident, etc.), the scope of the visit and determine if the inspector has a warrant. After this preliminary discussion, it is important that the corporate OSH officer point out any trade secret areas to the OSHA representative so that fact will be documented in the OSHA file. Insist that the OSHA representative wear all applicable safety equipment required in the area of the inspection, and that the employer representative follows those rules as well.

The issue of requiring OSHA to obtain a warrant prior to conducting an inspection is a sensitive one that must be decided on a case by case basis. OSHA is allowed to seek an ex parte (without notifying you) warrant to inspect your facility, without having any probable cause that a violation of the act was committed.7 Without a warrant, however, OSHA is prohibited from conducting an inspection in the absence of consent.

On one hand, asking for a warrant can force OSHA to more narrowly define the scope of their inspection. It may also be useful in requiring OSHA to make specific requests for documents instead of overly broad demands such as “all records related to needle sticks in the past 5 years.” Or more importantly, requesting a warrant may buy the employer time to get ready for the inspection. In general, it is this authors’ experience that requiring OSHA to obtain a warrant before allowing an inspection is counter-productive except in exigent circumstances. OSHA will perceive a denial of entry and a demand for a warrant as a hostile act, and will assume you are hiding something by hindering access. Rest assured their inspection will be more comprehensive when they return with a warrant.

The better approach is to informally negotiate the scope of the inspection, including documents to be produced, witnesses to interview and parts of the facility produced for inspection. Gentle reminders that documents requested are “outside the scope of the agreed inspection” have been effective in corralling the officer to the issues at hand. Remember, however, that any items in plain view of the compliance officer are fair game in the inspection, so if you grant access to a part of the facility, anything he observes en route to that part of the facility is open to inspection. It is not uncommon to take the compliance officer on an extremely circuitous route to the area of concern, so as not to take the officer past other areas of concern (like the aforementioned janitor’s closet.) If, after reaching an agreement on the scope of the inspection, the compliance officer refuses to comply with your agreement, you may then ask the officer to leave the premises and require a warrant. A factually correct letter to the compliance officer’s boss, the Area Director, explaining the reasons for your actions may help defray the hostilities, and give you the moral high ground in requesting a warrant. Be advised that in cases of a workplace fatality, or other emergency situation, OSHA has nearly unlimited right of access, and a warrant is generally not required.8

OSHA will undoubtedly ask for copies of several written documents. It is preferred that the employer ask OSHA to provide a written list of items requested so there is no confusion. Generally they will ask for the OSHA 300 log and any associated OSHA 101 forms (first notice of injury). They will also ask for the company Hazard Communication (Haz Com) training program and a log of all MSDS in your possession. They will usually ask to see a copy of your lockout/tagout plan, hearing conservation plan, blueprints of your facility, training records for each exposed employee, and a list of all employees. For a healthcare provider, they will likely ask to see your healthcare related policies, including blood borne pathogen, needle stick, and ergonomic standards policies. They will want to know if your facility is union or nonunion, and ask for the contact information for the union representative. This author generally produces employee accident information only after a written request is made by OSHA, in an effort to avoid any HIPPA problems

2. The Walk Around

OSHA’s primary purpose in conducting an inspection is to gather evidence of violations. An employer and any employee representative have the right to accompany an OSHA representative on his walk around.9 The corporate OSH officer and the company attorney should accompany the OSHA compliance officer at all times. If the compliance officer takes a photograph, attempt to take an exact replica of the photograph with your own camera. Use a video camera if the OSHA representative is using one.

The compliance officer may identify some hazards that are capable of correction in their presence. It is adviseable to go ahead and do so if possible, but the employer should document the hazard identified and the method of correction. It is also highly advisable, if possible, to stop all work in the area where the inspection will occur, and ask all employees assigned to that area to go to the break area and await further instructions.

Following the facility inspection portion of the walk around, the compliance officer will likely ask to interview employees. In general, a compliance officer has the right to private interviews with rank and file, non-managerial employees. The prevailing wisdom is that neither the company OSH officer nor the company attorney can participate in this interview. Employees may, however, ask their employee representative (typically a union shop steward) to accompany them, or their own attorney. An employer is not obligated to produce an employee for an interview during regular work hours if it creates a risk of injury to other workers, or unduly disrupts production.10 Reasonable arrangements can be made to produce the employee for interviews after work hours, or on the next regularly scheduled break. No employee may be discharged or in any other manner discriminated against for filing a complaint, testifying, or exercising any other right during an OSHA inspection.11

Controlling employee disclosures to OSHA during their interview is perhaps the strongest weapon an employer possesses in managing an OSHA investigation. It is crucial to meet with each employee prior to their interview to go over witness strategies. If possible, an attorney should assist you in this. All witnesses should be counseled extensively against commenting on issues outside of their specific first hand knowledge, speculating on issues which may be outside of their expertise, and agreeing to leading questions which may not be accurate. A witness who is cooperative but insists on accuracy will be a strong witness for the employer. It is also advisable to prepare the employee for an exit interview before they speak with OSHA. By discussing the process with him or her and advising them to take notes during the interview, that employee may be able to convey to the employer representative enough details about the interview to be almost as helpful as participation. Although you will not have the same degree of detail as if you were in the interview, you can get an idea of what the OSHA concerns are in your facility.

In those instances where OSHA agrees to allow the employee to have an attorney present, they will generally object to allowing the employee to utilize the employer’s attorney who has been provided at no cost to the employee. It is OSHA’s view that such an attorney may have a conflict of interest in representing the employer and the employee. In difficult situations where, in the judgment of the employer, it is determined that a particular employee must be assisted during their interview, one technique an employer may utilize is to have the employee sign a waiver of any conflict of interest. After obtaining the waiver, the company-provided attorney may insist on attending the interview with the employee. There is support that OSHA must allow the interview under these circumstances.12 This, once again, may be viewed as a hostile act, so it is advised to use this method only when absolutely necessary. OSHA may decline to interview the employee at that time, and come back with a warrant for the employee’s testimony, but the conflict waiver would still apply.

OSHA has the right to ask an employee to sign a written statement. Employees are under no obligation to do so. This author routinely advises employees not to sign anything handed to them by the compliance officer, or make any comment about a statement’s truthfulness or accuracy. These statements are some of the strongest evidence a compliance officer can gather to make their case so explaining the significance of following the instruction not to sign the statement is a high priority objective. It is the experience of this author that since OSHA compliance officers are not trained litigators, they are prone to asking leading, vague and speculative questions which lead to problems later in the case.

Managerial employees have the right to have a company representative or its attorney present during interviews. “Managerial” employees are generally defined as those employees who have the right to bind the company by their statements, but in practice, they are more broadly defined. Any employee who has the right to hire and fire, is a supervisor to one or more other employees, or is considered a foreman, may be considered a “manager.” Because of the right to have a representative present during interviews, broadly construing this definition is advisable. Counsel’s role in these interviews is to try to force the compliance officer to ask clear questions and to make sure the witness understands the question prior to answering.

OSHA also has the right to conduct environmental sampling of the facility. This can include air monitoring, noise level evaluation and soil sampling to name a few. The employer is advised to attempt to conduct sampling of their own in conjunction with the OSHA team to assure accuracy. Compliance officers will generally agree to advance notice of a sampling team coming to the facility in order to allow the employer to retain a sampling team of their own choosing to conduct side-by-side testing. Courts are split as to whether OSHA has the right to require an employee to wear sampling devices, like radiation badges, during an inspection. It is sometimes worth the effort to ask the OSHA compliance officer if they will voluntarily provide copies of any sampling data and photographs taken by their officer. It never hurts to ask.

One last matter bears mentioning at the point. Although the walk around is a somewhat informal process, it is important to understand that you are on the record. Stray comments can and will be used by the compliance officer if it is relevant to their investigation. While it is always important to be polite, the less that is said, the better. For that matter, it is this author’s belief that it is sometimes beneficial to have a non-managerial employee, or the company lawyer, escort OSHA on the walk around If the non-managerial employee can truthfully only answer “I don’t know”, then OSHA will be forced to work a little harder for information.

3. The Closing Conference

At the conclusion of the on-site investigation OSHA will conduct a closing conference. The purpose of the closing conference is to signify the formal end of the investigation, and to review the Department’s findings with the employer. At this point, the compliance officer has a good understanding of what the citations will contain.13 It affords the employer and their attorney an opportunity to visit with the compliance officer to discuss their potential findings before a citation is issued. It is the experience of this author that this interview is best treated as a listening exercise rather than a free flow exchange of ideas, because anything stated during that closing conference is still fair game to be used against the employer. OSHA sometimes uses the closing conference as a method to fish for what the employers’ response to an issue will be before writing the citations so they can craft the citation around the employers’ defenses. It is sometimes worthwhile to press the compliance officer for all information collected which justifies a particular area of concern, but this is sometimes futile.

It is also helpful at the closing conference to ask the compliance officer if there are any matters that need to be corrected by the employer. This way the employer can begin taking steps to abate the hazard before the citation is issued. Although the employer is not under any obligation to correct any issues prior to the issuance of citations, OSHA will give the employer a deadline to comply at the time the citation is issued. This “abatement deadline” can sometimes be brief so an employer will benefit by having additional time to comply.

Another helpful item to obtain at the closing conference is a receipt from the officer itemizing all items provided to him during the course of his investigation. This way, there is no misunderstanding about whether something was provided to them or not.

Once the closing conference is completed, the compliance officer will return to their office and begin drafting the citations. It is unlikely that a compliance officer will return to the employer’s office to conduct any additional investigation.

4. When will I get citations?

The Act requires that citations should be issued with “reasonable promptness” and imposes a deadline of “six months following the occurrence of any violation”.14 It is not unusual for two or three months to elapse before receiving the citations in the mail following the closing conference.

I was just served with citations – What do I do now?

It is crucial that the employer’s corporate OSH officer be notified immediately when citations are received, as there are several deadlines that begin to run on the date of receipt. The employer should notify the mail room, or other person in charge of delivering the mail, that any materials received from OSHA should immediately be delivered to the company OSH officer. Upon receipt by the company, the date of receipt should be noted in the file, and fifteen (15) working days from that date should be noted on the calendar. An employer has only fifteen (15) working days to contest the citations, or they become a final and unappealable order from the Department of Labor.

Once an employer receives citations, it has essentially three options. First, the employer can simply agree to the citations as issued, and write a check. This is not recommended. The second option is to file a Notice of Contest, and challenge OSHA in court to prove the allegations asserted in the citations. It is strongly recommended that you retain competent counsel to assist you if you choose this alternative. Although OSHA will do their best to try to convince you to go forward without a lawyer, the fact of the matter remains that this is truly litigation, and there are traps for the unwary. The next option is to set up an informal conference. No matter what, an employer should always set up an informal conference with OSHA.

An informal conference is exactly what it sounds like – an informal meeting with the OSHA office that issued the citations. In the informal conference, an employer and their representative can sit down with the Area Director or his Assistant Area Director, and discuss ways to resolve the citations without resorting to litigation. Typically, the Area Director will sit in the conference room with you and begin to horse trade among the many variables in an OSHA citation. In addition to the monetary penalties, OSHA citations contain a gravity determination – Other than Serious, Serious, Willful, Repeat and even Criminal. The next variable in the citation is the language of the citation itself, which also can be manipulated. The usual set of citations contains some “fluff” citations that OSHA uses to negotiate with. In other words, OSHA will cite you for some matters they know will not pass muster on appeal just to give them some bargaining material. If you go in to an informal conference with a realistic expectation of a workable solution, you will more than likely be able to resolve the dispute at the informal conference. In this author’s experience, more than 90% of citations are resolved at the informal conference level.

Perhaps the most important reason for resolving a claim at the informal conference level is that if the employer is concerned about subsequent litigation resulting from the OSHA investigation, you can request language in the settlement agreement that can give your attorney more ammunition to argue against the admissibility of the citations in any subsequent civil litigation. While it is not iron clad by any means that it will be kept out, it will give your lawyer more to work with. If the employer takes the citations to litigation with OSHA and a finding is made against their interest or the employer simply pays the citations without obtaining an agreement, then it is nearly certain the citations will be admissible in subsequent civil litigation. If an agreement cannot be reached in the informal conference, the employer must file its Notice of Contest within fifteen days of the original receipt of the citations. It is important, when scheduling an informal conference, to do so with enough time remaining on your contest deadline to allow for continued negotiation after the conference is over, and if still unsuccessful, allow for time to file your Notice of Contest. This author suggests saving at least five business days for this continued negotiation period.

Citations will also contain an “abatement date” as mentioned above. This is the date by which time the citation must be corrected. The general rule is that the abatement date should be a sufficient amount of time for the employer to evaluate the violation, formulate a plan of correction, and implement those plans.15 In some instances it may be impossible for an employer to fix the problem by the date requested. In that instance, the employer may ask OSHA for an extension in a formal written letter. OSHA will typically grant an extension up to the deadline to file a notice of contest. If that is still not enough time, the employer may file their notice of contest which will suspend the abatement date until there is a final order of the Occupational Safety and Health Review Commission.16 Employers who do not abate the violation by the abatement date risk additional citations.

It is this author’s experience that OSHA is generally willing to extend the abatement date if needed. However, if they are unwilling, an employer may file a Petition to Modify Abatement (PMA). This is, once again, one of those filings that only should be pursued with the assistance of an attorney. Detailed discussions of the procedures for filing a PMA exceed the scope of this article, but the procedure exists if needed.

Filing your Notice of Contest

What happens if OSHA is unwilling to work with you on the local level, and your deadline is running out? Go ahead and file your Notice of Contest. Once again, it is imperative that you enlist the assistance of an attorney at this stage of the process. This author has had a fair degree of success resolving claims at the litigation level which were believed to be incapable of settling at the local level. Speaking lawyer to lawyer seems to take some of the personalities out of the equation in particularly contentious situations where OSHA and the employer butt heads in the informal conference. Of the 10% of cases that are appealed to the litigation level, it is this commentator’s experience that 80% of those can be resolved in lawyer to lawyer communications. For the remaining 20%, the employer will be served with a lawsuit by OSHA, and the employer will be required to file an answer.

Conclusion

OSHA is concerned about worker safety, and they do their best to do their job fairly. Unfortunately, the unwary employer can be taken advantage of if they are unprepared to manage an OSHA visit. With careful planning and training, an employer may assert some control over the process and reduce its exposure to significant OSHA fines and subsequent litigation difficulties. If OSHA does show up at your door, now you know what to do.

1 OSHA Targeted Inspection Plan for 2005 at p. 12, 8/9/2005 available at

www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=11530.

2 New York Times, With Little Fanfare, a New Effort to Prosecute Employers that Flout Safety Laws, May 2, 2005.

3 OSHA’s 24-hour hotline number is 1-800-321-6742. As will be discussed later, it is extremely important to be as brief and factual as possible. Your conversation and/or report to OSHA will be recorded and transcribed, and a copy placed in the investigators file.

4 OSH Act Sec. 17(f) authorizes up to $1,000 penalty and up to six months imprisonment, or both, for giving advance notice of an inspection.

5 Look for the posters that apply to your business at www.osha.gov/pls/publications/pubindex.list#posters1.

6 This is a recurring concern of OSHA.

7 See Marshall v. Barlow’s Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978); see also Rockford Drop Forge Co. v. Donovan, 672 F.2d 626 (7th Cir. 1982.).

8 For a more thorough discussion of warrants for an OSHA inspection, see Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978.)

9 OSH Act Sec. 8(e).

10 See Urick Foundry Co. v. Donovan, 542 F.Supp. 82 (W.D. Pa 1982); see also National Engineering & Contracting Co., v. OSHA, 928 F2d 762 (6th Cir. 1991).

11 See 29 CFR Part 1977.

12 See Reich v. Muth, 34 F.3d 240, 244 (4th Cir. 1994) (upholding the right of an employee to voluntarily choose counsel prior to an interview with OSHA regardless of the fact attorney represents both employer and employee); see also Dole v. Bailey, 14 OSHC 1534, 1990 O.S.H.D. P28898, 1990 WL 299392 (N.D. Tex. 1990).

13 Although the Area Director reserves the right to change or supplement the recommendations of the compliance officer…

14 See OSH Act Sec. 9(a), (c).

15 See Matthews & Fritts, Inc., 2 OSHC 1149, 1974-75 OSHD P. 18,455 (1974).

16 See Reich v. Manganas, 70 F.3d 434 (6th Cir. 1995).

Steven O. Grubbs

Board Certified – Labor and Employment Law –

Texas Board of Legal Specialization

sgrubbs@sswpc.com

Sheehy, Serpe & Ware, P.C.

2500 Two Houston Center

909 Fannin

Houston, Texas 77010

713.951.1000 x 1014

713.951.1199 (fax)

www.sswpc.com

Steve Grubbs is a Board Certified Labor and Employment lawyer who practices OSHA law, OSHA litigation, and all other aspects of employment law and litigation.

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Author: Steven Grubbs
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