OSHA Law Blog : Occupational Safety Lawyer & Attorney : Jackson Lewis Law Firm : Health, OSHA Compliance

Over the past three months, the media has been fixated on concussions in professional football players. Some of the National Football League’s top players – Ben Roethlisberger, Kurt Warner, Clinton Portis – have recently been sidelined for concussions sustained on the playing field. After Ben Roethlisberger of the Pittsburgh Steelers was held out for an important game against division rival Baltimore because he was experiencing exercise-induced headaches, Hines Ward, the team’s all-time leading receiver, suggested to the media that Roethlisberger should have played in the game, even if that meant lying to the team’s medical staff in order to obtain clearance.

As the media has focused on the issue of concussions in professional athletes, an interesting question has been raised: where is OSHA in all this? While some professional athletes may be “independent contractors” and not covered by the Occupational Safety and Health Act (OSH Act), many most assuredly are “employees” and their employers must take steps to protect them. The failure of employers to respond on their own to workplace injuries and illnesses was one of the key reasons that Congress passed the OSH Act in 1970.

In order for OSHA to regulate a hazardous condition in the workplace, it must first determine whether a “significant risk” of workplace injury or death exists from exposure to the hazardous condition. The risk of this injury or death is considered over a 45-year working lifetime under the OSH Act. It would be interesting for OSHA to examine – in all professional sports – what is the risk of developing a concussion or other serious head injury assuming a professional athlete were to be exposed to hazards over a 45-year period. The numbers could be eye-opening.

OSHA, of course, has been silent on the issue of concussions in professional sports. Perhaps the issue of injuries in professional athletes is too far outside OSHA’s comfort zone, believing its limited resources can be better used elsewhere. It is legitimate to question, however, the extent to which OSHA should be involved in this issue or whether Congress needs to create a new “Sports Safety and Health Administration” or “SSHA” to mandate athlete safety and health.

Click here for a Special Report analyzing concussions in athletes and steps professional sports franchises, colleges, universities, and public school systems across the country can take to address concussion management.

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Employers may be required to provide seven days of paid sick time per year under a bill introduced in Congress.  The measure, titled the Pandemic Protection for Workers, Families, and Businesses Act (H.R. 4092/S. 2790), was introduced by Representative Rosa DeLauro (D-Conn.) in the House and Senator Christopher Dodd (D-Conn.) in the Senate on the heels of another emergency paid sick leave bill proposed earlier.  If passed, the Pandemic Protection Act would be a temporary law that expires two years from enactment.

Under the proposal, employees would be entitled to paid sick time off due to a contagious illness or to care for a child with a contagious illness.  It seeks to contain the spread of H1N1 and other influenza strains by ensuring sick employees can stay home from work without financial sacrifice from loss of work.

The Pandemic Protection Act would require most employers with 15 or more employees to provide full-time employees with seven days of paid sick time to be used for the following reasons:

• The employee or his or her child is experiencing symptoms of a contagious illness, such as the 2009 H1N1 virus or other influenza-like illness, including time off for medical and preventive care;
• A health authority or health care provider has determined that the employee’s presence at work or the child’s presence in the community would expose others to a contagious illness; or
• The employee’s worksite or the child’s school, child care or early childhood program has been closed due to a contagious influenza-like illness.

Part-time employees would be entitled to a pro-rata share of paid sick days.  Employees must have worked for their employer for 30 days before they are covered under the bill.

If the Act becomes law, employers’ existing paid time off (PTO) policies may need to be modified.  According to the bill, employers who already provide seven days of paid sick leave that “may be used for the same purposes and under the same conditions as the purposes and conditions [covered in the legislation] shall not be required to provide additional paid sick time…”  It is unclear what effect the legislation would have on PTO plans that allot a certain amount of time off without specifying the permitted purposes of use.  The proposal also leaves unanswered the question whether an employee who has exhausted his or her PTO allotment would be entitled to paid leave for the reasons in the bill.

Regardless of the outcome of this paid sick leave measure, employers should develop and implement contingency plans to address widespread absences due to pandemic illness in the workplace.

Carrie Jabinsky drafted this blog post.

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As concern over H1N1 and influenza-related illnesses continues to spread, legislation that would require employers to provide up to five days of paid sick leave per year to workers afflicted with influenza or other, similar contagious illness has been introduced in the U.S. House of Representatives. The bill applies to employers with 15 or more employees where workers comply with the employer’s directive to go home or stay home from work because of a contagious illness. The proposed legislation, titled the Emergency Influenza Containment Act (H.R. 3991), was introduced by House Education and Labor Committee leader Rep. George Miller (D-Cal.) and Workforce Protections Subcommittee leader Rep. Lynn Woolsey (D-Cal.).

If passed, the bill would apply to both full time and part time employees who are “directed” or “advised” to leave work or not come in “because the employer believes the employee has symptoms of a contagious illness, or has been in close contact with an individual who has symptoms of a contagious illness.” Contagious illness is defined in the legislation and includes “influenza-like-illnesses,” such as H1N1.

Covered employees would be entitled to an amount of paid sick leave calculated based on the employee's regular rate of pay and scheduled hours of work. Small employers and companies that already provide five or more paid sick days per year would be exempt from the bill’s requirements.  The measure also would prohibit employers from firing, disciplining, or retaliating against workers who comply with the employer’s directive to stay home or not come to work.

The Emergency Influenza Containment Act may move quickly as a result of mounting concerns regarding influenza-related illnesses. The House Education and Labor Committee is expected to hold a hearing on the legislation during the week of November 16. The Emergency Influenza Containment Act would expire two years from enactment.

Carrie Jabinsky drafted this post.

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President Barack Obama has announced he intends to nominate Professor David Michaels to be the Assistant Secretary of OSHA. Professor Michaels is the interim chair of the Department of Environmental and Occupational Health at the George Washington University School of Public Health in Washington, D.C. If confirmed, Professor Michaels will join Acting Assistant Secretary of OSHA Jordan Barab in the political leadership of the safety and health agency.

In addition to his current position with George Washington University, Professor Michaels has a long history in public health. During the Clinton Administration, Professor Michaels was Assistant Secretary for Environment Safety and Health at the Department of Energy, where he played a role in overseeing safety and health issues for employees at nuclear weapons facilities.

While it is too early to predict Professor Michaels’s likely priorities, in past writings, he has indicated the need for OSHA:  (1) to issue a workplace injury and illness prevention program rule; and (2) to develop an electronic recordkeeping and reporting system. Both would further past and present OSHA initiatives.  

During the Clinton Administration, OSHA developed, but never issued, a Safety and Health Program rule which would have required employers to implement a broader process for preventing injuries and illnesses in the workplace. Should Professor Michaels be confirmed, he may press his interest in an injury and illness prevention program rule, likely reigniting discussions regarding the need for employers to implement safety and health programs at their worksites. 

A potential electronic recordkeeping system also fits neatly into OSHA’s current enforcement efforts. OSHA will be releasing a Recordkeeping National Emphasis Program (NEP) in the next few weeks, which will focus enforcement resources on recordkeeping inspections in certain establishments. OSHA will perform thorough records reviews and investigate the extent to which employers may be discouraging workers from reporting injuries and illnesses. The Department is intent on rooting out underreporting.  An electronic recordkeeping system could make it easier for the agency to monitor worksite injuries and illnesses and possible underreporting.

No information has been released as to when Professor Michaels’s confirmation hearings may be held. This announcement, however, may calm the uncertainty that had been swirling around OSHA as to who would be the permanent political head of the agency.

We will, of course, continue to keep you apprised of developments with respect to the nomination.

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Representative John Conyers  (D-Mich.) has once again introduced in the House of Representatives a bill that would require the Occupational Safety and Health Administration (OSHA) to promulgate a safe patient handling and injury prevention standard. The “Nurse and Health Care Worker Protection Act of 2009” has reignited the debate over the proper approach to ensuring employee and patient safety in the health care industry.

The Health Care Worker Protection Act would require OSHA, not later than one year from the date of promulgation of the bill into law, to publish a proposed rule to require health care employers to, among other things:

• use engineering controls to perform patient lifting and repositioning of patients and to eliminate all manual lifting of patients by health care workers, except where the use of safe patient handling practices is demonstrated to compromise patient care;
• implement a safe patient handling and injury prevention plan including hazard identification, risk assessments, and control measures; and
• obtain input from direct-care registered nurses, health care workers, and employee representatives in developing and implementing the safe patent handling and injury prevention plan, including the purchase of equipment.

The legislation would also provide specific whistleblower protections for any health care worker who in good faith reports a violation or suspected violation of the Act. Under the legislation, OSHA would have to finalize the safe patient handling rule within two years from the date of passage.

This is not the first time that this or similar legislation has been introduced in Congress. However, with the Democratic majorities in both the House of Representatives and the Senate, and Democratic control of the White House, there is greater momentum behind the bill. In addition, the Acting Head of OSHA, Jordan Barab, recently signaled a willingness to consider industry-specific ergonomics rulemakings to deal with high-hazard industries.

Almost a decade ago, OSHA finalized an ergonomics standard that would have required all health care employers to implement an ergonomics program, including the elements of management commitment, employee participation, hazard assessment and control, and medical management. It also would have mandated “work restriction protection,” which would have required that certain pay and benefits for employees be maintained for periods they are out of work due to a work-related injury.

Congress and President George W. Bush disapproved of the final standard, however, and in 2001 it was rescinded under the Congressional Review Act (CRA). As a result, OSHA is prohibited from promulgating an ergonomics standard that is “substantially the same” as the rescinded standard. No one knows precisely what those words mean, but they are sure to be hotly debated over the next several months.

The Acting Head of OSHA recently suggested that OSHA is considering an industry-by-industry approach to ergonomics as an acceptable method to pursue some ergonomics rulemaking in light of the CRA. The health care industry is a prime target for OSHA attention. It has high musculoskeletal injury rates, compared with the average of all of private industry. In addition, just a few years ago OSHA published its “Ergonomics for the Prevention of Musculoskeletal Disorders: Guidelines for Nursing Homes,” which detailed a variety of ergonomic controls for employers to implement to assist in patient handling.

Health care employers stay tuned.  There will certainly be more on ergonomics and the health care industry over the next several months.

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