New math: OSHA could multiply fines by the number of employees affected
'Clarification' opens employers to higher fines
Lapses in personal protective equipment and training could soon become a lot more costly. The U.S. Occupational Safety and Health Administration has proposed a "clarification" of rules, including the respirator protection and bloodborne pathogen standards, that give it authority to magnify fines for hospitals and other employers.
If employees do not use personal protective equipment (PPE) when exposed to a hazard or if they don't receive their annual training, the fine could be multiplied by the number of employees affected. In other words, each employee in a department or facility could represent a separate violation.
If the proposed wording change goes into effect, hospitals could feel the heat, says Bruce Cunha, RN, MS, COHN-S, manager of employee health and safety at Marshfield (WI) Clinic. "You've really got to be sure your employees are trained and have the right PPE," he says.
According to OSHA's explanation in the Federal Register, the agency always intended for standards to apply individually to employees. "The amendments add no new compliance obligations," OSHA states. "Employers are not required to provide any new type of PPE or training, to provide PPE or training to any employee not already covered by the existing requirements, or to provide PPE or training in a different manner than that already required. The amendments simply clarify the remedy for violations of these requirements."
"We want employers to understand the importance of complying with OSHA's PPE rule for each and every one of their employees," Assistant Secretary of Labor for OSHA Edwin G. Foulke Jr. said in a statement.
As a practical matter, the rule "clarification" opens up employers to much higher fines. Yet OSHA notes that it often groups violations for a single penalty and reserves the "per-employee" citation "where the resulting heightened aggregate penalty is appropriate to deter flagrant violators and increase the impact of OSHA's limited resources."
"It is not intended to work a fundamental change in the conduct of inspections or the number of citations, but rather to ensure that an appropriately high penalty can be assessed in appropriate cases," an OSHA spokesperson said in response to questions from Hospital Employee Health.
The Association of Occupational Health Professionals in Healthcare (AOHP) in Warrendale, PA, offered support for OSHA's emphasis on protecting each employee, although the association still is reviewing the potential ramifications of a "clarification" that could result in per-employee fines.
"All of the standards that include the use PPE should have common language that makes it clear to employers that PPE must be made available for each employee and that each employee must be trained in the proper use of the PPE," says MaryAnn Gruden, MSN, CRNP, NP-C, COHN-S/CM, employee health coordinator at Western Pennsylvania Hospital (West Penn) in Pittsburgh and AOHP's liaison with OSHA.
The emphasis of the potential for per-employee citations actually could give employee health professionals more leverage, notes Bill Borwegen, MPH, occupational safety and health director for the Service Employees International Union (SEIU), which represents health care workers.
"This is an opportunity for the occupational health professionals in health care to assert a greater authority," he says. "They're the only ones who are adequately trained to deal with respiratory protection issues."
Employees must wear the PPE
Still, the thought of being liable for multiples of violations can be daunting. Cunha notes that OSHA recently inspected a veterinary lab within the Marshfield Clinic in response to a complaint. Much of the complaint was not sustained, but the inspector noted that while eye protection was provided, the PPE wasn't being used by employees. The clinic was fined less than $1,000, which was reduced because it was a first violation.
"Had that been under the new rule, we would have been fined 16 times" based on the number of potentially exposed employees in the lab, Cunha says.
As a result of the citation, he implemented a hazard assessment in all departments. He is also retraining managers, who may mistakenly think it's the employer's responsibility to provide the PPE but the employee's responsibility to wear it.
"We've got to make sure the managers are enforcing [the requirement to use PPE] and [employees] are wearing PPE when needed," he says. "The bloodborne pathogen standard is clear. It is the employer's responsibility to make sure that the employees are wearing the PPE."
OSHA's clarification stems from rulings of the Occupational Safety and Health Review Commis-sion, which found that wording referring to training or PPE for "all [exposed] employees" created a requirement "in the aggregate." In other words, failure to provide respiratory protection would be one violation.
Yet OSHA stated the agency "believes that a separate violation occurs for each employee who is not provided required PPE or training, and that a separate citation item and proposed penalty may be issued for each."
In seeking the clarification, OSHA is responding to an OSH Review Commission ruling in the case of Secretary of Labor v. Erik Ho. Ho, of Houston, was cited for hiring 11 undocumented Mexican immigrants to remove asbestos from a building without providing PPE or training them on the hazards of asbestos. The commission ruled that the wording of the standards allowed only single violations for the failure to provide respirators and training.
That interpretation was upheld by the U.S. Court of Appeals, though on somewhat different grounds. Meanwhile, the OSH Review Commission allowed per-employee citations in a different case, related to the construction lead standard, because of the wording.
[Editor's note: The proposed rule (Federal Register 73:48335-48350) is available at www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=FEDERAL_REGISTER&p_id=21055. OSHA accepted comments through Sept. 18 for docket number OSHA-2008-0031 or regulatory information number (RIN) 1290-AA23 at www.regulations.gov.]
Lapses in personal protective equipment and training could soon become a lot more costly. The U.S. Occupational Safety and Health Administration has proposed a "clarification" of rules, including the respirator protection and bloodborne pathogen standards, that give it authority to magnify fines for hospitals and other employers.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
- Award-winning Medical Content
- Latest Advances & Development in Medicine
- Unbiased Content