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OSHA Ergonomics Guidelines & Enhanced Enforcement Compound Regulatory Concerns for LT Care Employers

  • May 29, 2003

The Occupational Safety and Health Administration has announced an important new enforcement policy targeting 10,000 specific employers for more robust workplace inspections that may result in heavy citations, expanded penalties, and continuing governmental scrutiny. OSHA's new strategy announced on March 11 is part of the agency's reinvigorated efforts to force employers to improve their safety records.

Among the 14,200 individual "establishments" (i.e., individual facilities, locations, etc.) on the OSHA list are many health care facilities having what OSHA has recently identified as excessive injury and illness rates. Targeting an employer and all its facilities on the basis of individual facility safety records, as opposed to the overall company record, exposes many employers with overall satisfactory safety records to the enhanced enforcement and remedial measures of the "targeted employer" list.

In addition to targeting employers for enhanced inspections, intensified punitive measures under the enforcement initiative will be triggered if OSHA finds that an identified establishment has a "high gravity" violation. For example, a finding of a "high gravity" violation could be expected in the event of a fatality at a facility.

Under the OSHA Site Specific Targeting (SST) Program, the identified establishments will be assigned a high priority for inspection in 2003 and early 2004. As part of the National Emphasis Program announced in 2002, OSHA already has conducted nearly 400 inspections of nursing homes and has issued 55 hazard alert letters concerning ergonomics problems (see article below). Under this NEP, nursing homes may be able to apply for a Voluntary Protection Program, but the criteria for acceptance is strict and the requirements are rigorous.

Final Ergonomics Guidelines Focus on Resident Lifting

After a review and comment period, the final ergonomics guidelines for nursing homes were issued by the Occupational Safety and Health Administration in mid-March. The nursing home guidelines are part of a series that OSHA is preparing to help reduce the number and severity of ergonomic injuries among workers in all industries, but particularly in those industries with above average illness and injury rates. The Guidelines for Nursing Homes focus on practical recommendations for long term care employers to reduce the number and severity of workplace injuries by using methods found to be successful in the nursing home environment.

Although the agency stressed that implementation may differ from site to site, the guidelines strongly recommend that all nursing home facilities minimize manual lifting of residents and eliminate such lifting when feasible.

Specifically, the long term care industry guidelines focus on the reduction and elimination of manual lifting of facility residents. The agency guidelines also encourage employers to implement a basic ergonomic process that includes providing management support, involving workers, identifying problems, implementing solutions, addressing reported injuries, providing training, and evaluating ergonomic efforts.

The Guidelines are divided into five sections: developing a process for protecting workers; identifying problems and implementing solutions for resident lifting and repositioning; identifying problems and implementing solutions for activities other than resident lifting and repositioning; training; and additional sources of information. They are part of the agency's "four-pronged" approach to ergonomics announced in April 2002, and which also includes enforcement, outreach and assistance, and research. The Guidelines and Fact Sheet are available on the OSHA website.

Although enforcement activity on ergonomics is picking up, OSHA administrators claim the new guidelines will not be used for enforcement. Included in the final guidelines is a disclaimer that "[t]hese guidelines are advisory in nature and informational in content. They are not a new standard or regulation and do not create any new OSHA duties." The disclaimer also says that an employer's failure to implement the guidelines will not be used as evidence for a citation under the general duty clause of the Occupational Safety and Health Act.

Despite these assurances, OSHA recently has issued four general duty clause citations for ergonomics hazards and may have other citations in process. The agency is planning more follow-up inspections for employers that have received hazard alert letters. A new inter-directorate ergonomics response team evaluates and screens all cases prior to pursuing enforcement action. OSHA has named ergonomic coordinators for each of its 10 regional offices to assist staff, employers, employees, and other stakeholders with ergonomic issues, and a national ergonomics coordinating inspection team is in place. Some regions have hired or are in the process of hiring ergonomists to provide expertise in the evaluation of OSHA enforcement cases.

The long term care employer community has been cautiously supportive. While organized labor has voiced disappointment that the guidelines do not go far enough, the American Health Care Association and the American Association of Homes and Services for the Aging said the guidelines "demonstrate an understanding of the complexities involved with applying ergonomics to the lifting, transferring, and repositioning of nursing home residents." Together the two associations represent more than 17,000 nursing facilities, assisted living residences, and homes for persons with developmental disabilities.

OSHA Ergonomics Guidelines for Nursing Homes "Frequently Asked Questions"

Along with the Guidelines, OSHA has made available a list of frequently asked questions to assist long term care employers in their voluntary compliance efforts. Below are excerpts from the FAQs, which are available in full on the OSHA website.

Why did OSHA choose nursing homes?

Providing care to nursing home residents is physically demanding work. Nursing home residents often require assistance to walk, bathe, or perform other normal daily activities. The experience of many nursing homes suggests that injury prevention efforts focused on resident lifting and repositioning methods can have success in reducing work-related injuries and associated workers' compensation costs. Providing a safer and more comfortable work environment has also resulted in additional benefits for some facilities, including reduced staff turnover and associated training and administrative costs, reduced absenteeism, increased productivity, improved employee morale, and increased resident comfort. By sharing industry best practices through guidelines and building upon the progress in the nursing home industry, OSHA hopes that other nursing home providers will take steps to address ergonomics problems in their facilities.

Does lifting and repositioning of residents with mechanical devices diminish the rights or safety of residents?

No. The guidelines are particularly sensitive to resident rights and safety. Nursing homes that lift and reposition residents with mechanical devices have found this practice to be safer for their employees and safer for their residents. These facilities have also found that resident dignity, independence, and security are improved. Of course, there may be some situations where the condition of the resident will not be compatible with using a mechanical lift; in those situations it may not be possible to use mechanical devices.

Does OSHA recommend that nursing homes implement every recommendation in the guidelines?

No. OSHA recognizes that every nursing home is unique. Employers should adapt the recommendations contained in the guidelines to the size and circumstances of their workplace. OSHA recognizes that small nursing homes may not have the need for as comprehensive a program as would result from implementation of every action and strategy described in the guidelines. OSHA hopes, however, that small nursing home facilities will find many of the recommendations contained in the guidelines useful in their ergonomics efforts.

Are the guidelines relevant only to the nursing home industry?

Although these guidelines are designed specifically for nursing homes, OSHA hopes that employers with similar work environments, such as assisted living centers, homes for the disabled, homes for the aged, and hospitals will also find this information useful. In outreach material, OSHA will communicate the utility of the recommendations made in the guidelines to a wide variety of industries. OSHA notes, however, that the recommendations in the guidelines are directed specifically at the nursing home industry. While employers in other industries may find the information useful, they should be careful to review whether the recommendations are appropriate for their industry and worksite.

Can an OSHA compliance officer cite a nursing home facility for not implementing the guidelines?

No. The guidelines are completely voluntary. They are not a new standard or regulation and do not create any new OSHA duties. Under the OSH Act, the extent of an employer's obligation to address ergonomic hazards is governed by the general duty clause, which requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm. An employer's failure to implement the guidelines is not a violation, or evidence of a violation, of the general duty clause. OSHA has included language in the guidelines making it clear that the guidelines are strictly voluntary.

What process did OSHA use to develop the guidelines?

OSHA reviewed existing ergonomics practices and programs, State OSHA programs, as well as available scientific information, to develop the guidelines. OSHA also met with stakeholders to gather information on the ergonomic problems present in the nursing home environment and the practices that have been used successfully in the industry. OSHA disseminated draft guidelines for public comment on August 30, 2002. On November 18, 2002, OSHA held a stake-holder meeting in the Washington, DC area to discuss the draft. OSHA thanks the many organizations and individuals involved for their thoughtful comments, suggestions, and assistance.

How are the guidelines structured?

The guidelines are divided into five main sections.

A Process for Protecting Workers recommends a process for addressing ergonomics that includes: providing management support; involving employees; identifying problems; implementing solutions; addressing reports of injuries; providing training; and evaluating ergonomics efforts.

Identifying Problems and Implementing Solutions for Resident Lifting and Repositioning addresses issues employers should consider when analyzing resident lifting and repositioning tasks and implementing solutions. This section also presents twenty-two solutions employers may consider implementing for resident lifting and repositioning tasks.

Identifying Problems and Implementing Solutions for Activities Other than Resident Lifting and Repositioning presents the issues employers should consider when examining activities other than resident lifting and repositioning, as well as possible solutions.

Training describes the training that should be received by charge nurses and supervisors, designated program managers, and nursing assistants and other workers at risk of injury.

Additional Sources of Information describes tools and other guidelines employers may wish to consult to help them further address ergonomic concerns in their facilities. It also provides information on how to obtain the materials.

Editor's Note: The new ergonomics guidelines for nursing homes underscore the need for all long term care employers to be proactive in understanding the particular scrutiny OSHA is bringing to bear on this and other industry segments with above average employee illness and injury rates. Even more critical, those long term care employers targeted for site specific inspections under OSHA's enhanced enforcement initiative immediately should analyze their vulnerability and develop a response strategy that assures compliance with existing applicable OSHA standards and that addresses the areas covered by the guidelines on ergonomics and other previously identified hazards.

Jackson Lewis attorneys are available to assist long term care employers prepare for the impact of OSHA's multiple and overlapping enforcement initiatives.

©2003 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm that built its reputation on providing workplace law representation to management. Founded in 1958, the firm has grown to more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries including government relations, healthcare and sports law. More information about Jackson Lewis can be found at www.jacksonlewis.com.

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