Workforce Bulletin

James S. Frank, a Member in the Health Care and Life Sciences and Labor and Employment practices, and Serra J. Schlanger, an Associate in the Health Care and Life Sciences practice, co-authored an article for the American Health Lawyers Association (AHLA) entitled "Hospitals' Heavy Lifting:  Understanding OSHA's New Hospital Worker and Patient Safety Guidance."

The article, published in AHLA's Spring 2014 Labor & Employment publication, summarizes OSHA's new web-based "Worker Safety in Hospitals" guidance, explains how the guidance relates to OSHA's existing regulatory framework, and details what OSHA considers necessary for an effective Safe Patient Handling Systems as well as an effective Safety and Health Management System.

The article goes on to forecast what OSHA's Hospital Safety guidance will mean in the future for employers in the healthcare industry, including:

1. More Whistleblower Complaints;
2. Heavier enforcement by OSHA;
3. Increased enforcement by the Joint Commission; and
4. Greater interest in safety and health related legislation.

Finally, the article provides recommendations for what hospital and health system employers can do now to prepare for these developments, including:

1. Reviewing and digesting the new OSHA hospital patient and employee safety resource;
2. Work with employees and/or contractors to improve Safe Patient Handling Programs and/or a Safety and Health Management Systems; and
3. Prepare for more safety-related whistleblower complaints by setting up effective processes to quickly investigate and address complaints and employee injuries and illnesses.

Below are some excerpts from the article:

On January 15, 2014 the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) launched a new online resource to address both worker and patient safety in hospitals.

According to OSHA, a hospital is one of the most dangerous places to work, as employees can face numerous serious hazards from lifting and moving patients, to exposure to chemical hazards and infectious diseases, to potential slips, trips, falls, and potential violence by patients—all in a dynamic and ever-changing environment. . . .

By Eric J. Conn, Head of Epstein Becker & Green’s OSHA Practice Group

OSHA recently announced a campaign to raise awareness about the hazards likely to cause musculoskeletal disorders (MSDs) among health care workers responsible for patient care.  Common MSDs suffered in the patient care industry include sprains, strains, soft tissue and back injuries.  These injuries are due in large part to over exertion related to manual patient handling activities, often involving heavy lifting associated with transferring and repositioning patients and working in awkward positions.

“The best control for MSDs is an effective prevention program,” said MaryAnn Garrahan, OSHA’s Regional Administrator in Philadelphia. “[OSHA’s] goal is to assist nursing homes and long-term care facilities in promoting effective processes to prevent injuries.”

As part of the campaign, OSHA will provide 2,500 employers, unions and associations in the patient care industry in Delaware, Pennsylvania, West Virginia and the District of Columbia with information about methods used to control hazards, such as lifting excessive weight during patient transfers and handling.  OSHA will also provide information about how employers can include a zero-lift program, which minimizes direct patient lifting by using specialized lifting equipment and transfer tools.  Here is a resource regarding Safe Patient Handling from OSHA's website.

Employers in the healthcare industries should be on high alert, because whenever OSHA provides information about hazards it believes are present, a focus on enforcement is soon to follow.  This is particularly true when it comes to hazards for which OSHA has no specific standards or regulations, like ergonomics.  In these circumstances, OSHA is limited in its enforcement to use of Sec. 5(a)(1) of the OSH Act – the General Duty Clause.  The General Duty Clause is used by OSHA to issue citations in the absence of a specific standard, in situations where employers have not taken steps to address “recognized serious hazards.”  Efforts like OSHA’s present campaign to advise healthcare employers about hazards in their workplaces, is OSHA’s way of making you “recognize” the hazard, so the Agency can more easily prove General Duty Clause violations.

Of course, there are plenty of other reasons that healthcare employers should take note of the rate of MSD cases in patient care work.