On June 25, 2015 the Occupational Safety and Health Administration (OSHA) issued a memorandum to its regional and state enforcement offices announcing a new inspection emphasis for inpatient healthcare providers such as hospitals and residential care facilities. The impetus for this initiative is the significantly higher rates of workplace injuries in these employment settings attributable to several identified causes, including musculoskeletal injuries, slips, trips and falls and workplace violence.
According to the OSHA memorandum, inpatient healthcare facilities have some of the highest rates of worker injuries among major industries for which nationwide data is available. The industry experienced a rate of 6.4 work related injuries and illnesses per 100 full time employees based on 2013 data. This rate is twice that of private industry as a whole. In fact, according to 2013 Bureau of Labor Statistics studies, 20% of all non-fatal occupational injuries involved workers employed in hospital or residential care settings. That places the residential healthcare industry first in the number of workplace injuries.
Almost one-half (44%) of all reported injuries in that industry involve musculoskeletal injuries resulting from “over-exertion,” which is typically associated with lifting. The national average for all industries is substantially less, coming in at 33%. This percentage is even higher when the figures are analyzed solely with respect to nurses, nursing assistants and orderlies who are responsible for most instances of patient lifting and transport.
Surprisingly, the incidence of injuries from workplace violence is similarly high among healthcare workers in these settings. While injuries from workplace violence accounted for 4% of all reported injuries in the private sector as a whole in 2013, that figure was 13% in the hospital and residential care industry.
Based on these statistics, OSHA has directed its enforcement staff that all future inspections of such facilities for any reason (whether due to a complaint, following a severe injury report, etc.) are to include an analysis of the potential hazards associated with musculoskeletal injuries, workplace violence, slips/trips and falls, as well as bloodborne pathogens and turberculosis. This is the case even though the original reason for the inspection may have nothing to do with these risks.
In light of this certainty, hospitals and assisted living facilities should consider undertaking an analysis of these workplace injury risks within their facilities well in advance of an OSHA inspection or investigation. Based on industry commentary on this new initiative, it is believed that the primary area of focus by OSHA will be efforts undertaken by employers to minimize the very high incidence of musculoskeletal injuries associated with patient lifting and transport. Employer action at this point should commence with an analysis of the activities presenting the highest risk of injury in the patient care setting and then addressing that risk from a policy and procedure standpoint. Ultimately, changes designed to reduce the risk of injury identified at the policy and procedure level should be incorporated into the work environment. Several commentators have suggested that facilities may need to consider investment in mechanical patient lifts in various settings.
All employers in every industry should have a meaningful workplace violence policy that is well communicated to employees and which instructs them on what actions to take whenever they perceive a potential threat of physical violence to themselves or others in the workplace. While random violence is difficult to anticipate and guard against, a substantial portion of violence in the workplace is committed by people who could very well have been foreseen as a threat in advance. This includes individuals (whether employees or third parties) who may have issued threats to workers either within or outside the workplace. An appropriate workplace violence policy should instruct workers to inform management whenever such potential threats are received or perceived so that the employer can assess the potential risk in advance and implement any necessary protective measures. Having been involved in several OSHA investigations focusing on workplace violence, I can state from personal experience and observation that a successful result starts with having a meaningful policy in place which is well communicated to employees. Once that is ascertained by the OSHA investigator, the next area of focus will be on the extent of both employee and management training on the policy.
In Tennessee, most occupational safety investigations and inspections are conducted by the Tennessee Occupational Health and Safety Administration (TOSHA), which is a division of the Tennessee Department of Labor. TOSHA enforces federal OSHA regulations by agreement with the United States Department of Labor. The tenor of any TOSHA investigation is always set by the level of compliance or good faith efforts to achieve compliance determined at the outset of the investigation. Now that OSHA has made health care employers aware of its playbook for the future, there is no reason such employers should not be immediately implementing strategies addressing this new enforcement initiative.
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John M. Lawhorn of Frantz, McConnell & Seymour, LLP practices extensively in the field of Labor and Employment law and regularly advises clients concerning federal and state laws pertaining to employment discrimination, retaliation and harassment, workplace policies, OSHA/TOSHA compliance, wage and hour compliance, labor/management relations, employment contracts and in many other aspects of the employment field. He regularly represents employer and employee interests in Tennessee State and federal courts on a wide variety of employment related matters.
