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.

Acting Assistant Secretary of OSHA Jordan Barab issued a statement today announcing a soon-to-be-issued compliance directive to guide agency inspections for H1N1 in healthcare facilities.  Click here to view the statement.

We will keep you posted in this space as the compliance directive is developed.  

OSHA has launched its long-awaited Recordkeeping National Emphasis Program (NEP).  Effective September 30, the NEP will subject employers in certain industries to comprehensive injury and illness records reviews.  Employers in the targeted industries should take time now to review their recordkeeping logs and practices to prepare for an NEP inspection.

Here is a special report on the NEP, including a description of its scope, the conduct of inspections, and the treatment of musculoskeletal disorders under the program. 

 

OSHA has declared that it lacks the congressional authority to ban the use of hazardous substances. OSHA made this statement in a letter of interpretation, published on the agency’s website, responding to a question specifically related to OSHA’s ability to ban hexavalent chromium in the workplace. OSHA agrees that “product substitution” is the best solution to eliminating the hazards from hexavalent chromium. However, the agency rejects the notion that it can ban its use or the use of any hazardous substance. According to OSHA, the authority to ban the use of hazardous materials has been delegated to the U.S. Environmental Protection Agency (EPA).

OSHA’s authority to mandate employers’ adherence to safe practices is provided by the Occupational Safety and Health Act of 1970 (OSH Act). While the OSH Act does not specifically allow OSHA to ban the use of hazardous substances, the agency has always taken a broad view of its regulatory authority. Thus, if banning the use of a hazardous substance were “reasonably necessary and appropriate” to provide a safe work environment, it could be argued that OSHA would have the authority to institute the workplace ban. However, the agency seems to have foreclosed that argument with its latest statement.

OSHA’s position is not simply of theoretical interest. It could be very important in upcoming OSHA regulatory actions. For example, the agency is preparing a proposal to regulate silica exposure comprehensively in the workplace. Many stakeholders have called for OSHA to ban the use of silica in abrasive blasting operations. This latest declaration from the agency would appear to take this possible regulatory approach off the table. It also could be important in OSHA’s diacetyl rulemaking, where product substitution is a significant issue.

OSHA’s Advance Notice of Proposed Rulemaking (ANPR) on combustible dust should be published soon in the Federal Register. The ANPR is currently under review by the Office of Management and Budget, the final step in the intergovernmental review process. Employers with combustible dust hazards in their worksites are encouraged to participate in the rulemaking process.

Combustible dusts are solids ground into fine particles, which can cause a fire or explosion when suspended in air under certain circumstances. Common examples of combustible dusts include metal (aluminum and magnesium), wood, plastic, rubber, coal, flour, sugar, and paper, among others. OSHA has identified  a number of industries with combustible dust hazards, including agriculture, chemicals, food, grain, plastics, wood, paper, textiles, pharmaceuticals, tire and rubber manufacturing, and metal processing. While certain OSHA standards provide some protection against combustible dust, for example, Housekeeping (29 CFR 1910.22) and Electrical Equipment in Hazardous Locations (29 CFR 1910.307), OSHA does not have a single comprehensive rule to protect employees from combustible dust explosions.

Secretary of Labor Solis, in announcing the combustible dust rulemaking, stated that “OSHA is reinvigorating the regulatory process to ensure workers receive the protection they need while also ensuring that employers have the tools needed to make their workplaces safer.” We will continue to monitor closely developments in this area and update this blog when the ANPR is finally published in the Federal Register.