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.

In a December 29, 2009 Federal Register notice, OSHA has announced three informal public hearings on its proposal to update its hazard communication standard. The hearings will begin at 9:30 am on the following dates:

  • March 2, 2010 in Washington, DC;
  • March 31, 2010 in Pittsburgh, PA; and
  • April 13, 2010 in Los Angeles, CA.

OSHA’s hazard communication proposal is one of the most significant rulemaking efforts in over a decade. Click here for a full description of the proposal. OSHA is proposing to revise its hazard communication standard to align it with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS). If finalized, the rule would affect over 5 million business establishments across the country and potentially over 120 million employees. Over 40 million employees would need to be trained on hazard communication under the proposal. OSHA estimates the annualized compliance costs will be almost $100 million for employers. Annualized benefits are estimated to be approximately $850 million.

Because of the broad scope of the proposed rule, all employers are encouraged to familiarize themselves with the requirements and participate in the informal public hearings. OSHA has announced that requests to appear at the hearings must be submitted by January 18, 2010, and testimony (if expected to be over 10 minutes in length) and documentary evidence must be submitted by February 1, 2010.

OSHA has released its long-awaited Fall Regulatory Agenda.  The Regulatory Agenda lists the major rulemaking initiatives that the agency will be pursuing over the next 12 months.  The Agenda also provides a snapshot into the agency’s priorities, as we enter the second year of the administration of President Obama.

Longstanding Rulemakings Remain on the Agenda

Most of the rulemaking items that started under President Clinton or Bush remain on OSHA’s regulatory agenda.  OSHA continues to push forward with a silica rulemaking, which was initiated in the 1990s.  OSHA predicts that it will publish a proposed rule comprehensively regulating exposure to silica in the workplace in July, 2010.  Other rulemakings that continue to receive OSHA’s attention include rulemakings on diacetyl, hazard communication, combustible dust, and tree care operations.

OSHA does announce in this regulatory agenda that it is abandoning its regulatory efforts to update its explosives rule.  This rulemaking had engendered some controversy during the Bush Administration over its proposed provisions related to storage of ammunition.

New Rulemakings Added

OSHA is also adding some new regulatory actions that are sure to be controversial.  First, OSHA is revisiting the issue of the definition of work-related musculoskeletal disorder (WMSD) and the need to identify specifically WMSDs in a separate recordkeeping column.  When OSHA developed its revised recordkeeping rule in the late 1990s, OSHA initially required employers to identify WMSDs separately on OSHA 300 logs.  This requirement, however, was abandoned by the Bush Administration in a follow-up regulatory initiative.  OSHA is now looking once again at the issue and it may reignite some of the controversy associated with past OSHA efforts related to WMSDs and ergonomics.

Second, OSHA is seeking information from the public on the need for a federal Aerosol Infectious Diseases standard.  Specifically, "OSHA is considering the need for a standard to ensure that employers establish a comprehensive infection control program and control measures to protect employees from airborne infectious disease exposures to pathogens that can cause significant disease."  California recently adopted its own aerosol transmissible disease standard and this rulemaking initiative suggests that federal OSHA is exploring the need for such a standard nationwide.

OSHA continues to be active on both regulatory and enforcement initiatives.  We will continue to keep you apprised in this space on the latest OSHA developments.              

Jackson Lewis and SmartPros Ltd. are pleased to announce the availability of two OSHA recordkeeping courses.  The first is Course 2215, OSHA’s Record-Keeping NEP:  What It Is and What You Need to Do to Prepare, which explains OSHA’s Recordkeeping NEP in detail.  The second is Course 2210, The OSHA Record-Keeping "Great Eight," which goes through eight key principles for OSHA recordkeeping compliance.

In addition, click here to view a recent interview on occupational safety and health issues prepared and produced by the Financial Management Network (FMN).  The interview covers H1N1, hazard communication, safety and health management systems, OSHA’s Recordkeeping NEP, and other hot topics.

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.

The Government Accountability Office (GAO) has released an analysis of OSHA’s efforts to ensure that work-related injuries and illnesses are properly recorded by employers.  Members of Congress had requested that the GAO determine (1) whether DOL verifies that employers are accurately recording workers’ injuries and illnesses and, if so, the adequacy of these efforts, and (2) what factors may affect the accuracy of employers’ injury and illness records.  The GAO study is another piece of the "under-recording puzzle" that is the focus of great attention by OSHA.

The GAO concludes that there are several deficiencies in OSHA’s recordkeeping audit verification program in terms of the ability of the audits to determine if employers are accurately recording injuries and illnesses that occur at the worksite:

  • OSHA does not always require inspectors to interview workers about injuries and illnesses.
  • Many workers are no longer employed at the worksite and therefore cannot be interviewed. 
  • OSHA does not review the accuracy of injury and illness records for worksites in eight high hazard industries because it has not updated the codes used to identify the industries in its recordkeeping rule.

The GAO also identifies disincentives to workers reporting injuries and illnesses, including fear of job loss or other disciplinary action and fear of jeopardizing rewards based on having low injury and illness rates.  The GAO also surveys U.S. health practitioners and concludes that over a third of them have been subjected to pressure from employers or workers to provide insufficient medical treatment to avoid the need to record injuries or illnesses.

In response to its findings, the GAO makes four recommendations to OSHA:

  • Require inspectors to interview workers during records audits and substitute other workers when those initially selected are unavailable.
  • Minimize the time between the date injuries and illnesses are recorded by employers and the date they are audited.
  • Update the list of high hazard industries used to select worksites for records audits.
  • Increase education and training to help employers better understand the recordkeeping requirements.

OSHA agreed with all the recommendations.   It stated that it would require inspectors to interview employees during records audits and develop policies to conduct audits in a timely fashion.  It also stated that it would pursue rulemaking to update the industry coverage of the recordkeeping rule from SIC codes to NAICS codes.  Finally, it committed to supplement its current outreach efforts on recordkeeping compliance.

Of course, OSHA has also implemented its Recordkeeping NEP, which will focus OSHA enforcement resources on investigating the extent to which employers are under-recording injuries and illnesses.

Employers must take steps now to ensure that they have been, and are, accurately recording injuries and illnesses that occur at work.   

  

 

OSHA’s Recordkeeping National Emphasis Program (NEP) has been in effect for over a month and employers should be taking steps now to review their records and prepare for an NEP inspection.

Click here for an article that can assist in the preparation process.  "Are You Prepared for OSHA’s Recordkeeping National Emphasis Program?," which just appeared in Workforce Management, describes the NEP and some recordkeeping best practices.  Implementation of these best practices can help ensure that employers are fully compliant with their OSHA recordkeeping obligations.   

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.

Marking the federal government’s first move from a “recommendation” to a “requirement” posture in dealing with H1N1, the Occupational Safety and Health Administration (OSHA) has announced that it will issue a compliance directive to enforce the Centers for Disease Control and Prevention’s Interim Guidance on Infection Control Measures for 2009 H1N1 Influenza in Healthcare Settings, Including Protection of Healthcare Personnel.

The OSHA Directive will prescribe uniform procedures governing OSHA inspections of healthcare institutions for occupational exposure to H1N1 flu.  Covered healthcare settings include acute care hospitals, nursing homes, skilled nursing facilities, physicians’ offices, urgent care centers, outpatient clinics, and home healthcare agencies.  OSHA will conduct inspections based upon employee complaints.

While it is unclear how much of the CDC Guidance will be incorporated into OSHA’s Directive and what level of compliance will be required, healthcare employers should make reasonable efforts to ensure their policies, procedures, forms, and postings conform with the CDC’s recommendations, including:

  • Hierarchy of Controls:  The CDC recommends that healthcare facilities use a “hierarchy of controls” to prevent H1N1 exposure and transmission including, in descending order of preference:  (1) elimination of potential exposures, such as minimizing outpatient visits for patients with mild influenza-like symptoms, and denying access to visitors with suspected or confirmed influenza; (2) engineering controls, including partitions for triage areas and other public spaces; (3) administrative controls, including providing vaccinations for employees, ensuring that ill employees stay home, and enforcing respiratory hygiene and cough etiquette; and (4) personal protective equipment (PPE), such as gloves and respirators.
     
  • N95 Respirators/Facemasks:  The CDC recommends use of respiratory protection “at least as protective as a fit-tested disposable N95 respirator for healthcare personnel who are in close contact with patients with suspected or confirmed 2009 H1N1 influenza.”  Close contact is defined as working within six feet of an infected patient.  Acknowledging that some facilities face a supply shortage of this equipment, the CDC advises that “special care … be taken to ensure that respirators are available for situations where respiratory protection is most important, such as performance of aerosol-generating procedures on patients with suspected or confirmed 2009 H1N1 influenza or provision of care to patients with other infections for which respiratory protection is strongly indicated (e.g., tuberculosis).”  This may require prioritizing resources.  The CDC recommends that facemasks be chosen over no protection.

For its part, OSHA suggests that if employers make a good faith effort to obtain N95 respirators, but are unable to do so for supply reasons, they will not be cited, so long as they are taking other appropriate protective measures.  What level of compliance OSHA will require with respect to these other recommended protective measures — such as screening for respiratory illnesses — is not clear at this time.

Beyond efforts to implement policies and procedures that comply with the CDC Guidance, healthcare employers must consider how the recommendations interact with their legal obligations under federal and state disability, leave, privacy and other laws.  The Equal Employment Opportunity Commission, for example, has published technical guidance detailing employers’ obligations under the Americans with Disabilities Act with respect to H1N1.

Mei Fung So prepared this blog post.

In one of the most significant rulemaking efforts in over a decade, OSHA is proposing to revise its hazard communication standard to align it with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS). If finalized, the rule would affect over 5 million business establishments across the country and potentially over 120 million employees. Over 40 million employees would need to be trained on hazard communication under the proposal. OSHA estimates the annualized compliance costs will be almost $100 million for employers. Annualized benefits are estimated to be approximately $850 million.

Because of the broad scope of the proposed rule, all employers are encouraged to familiarize themselves with the requirements and participate in the rulemaking process. Comments on the proposal must be submitted to OSHA by December 29, 2009.

Attached is a Special Report on the proposed rule that summarizes its key provisions.