Howard Sokol is an Associate in our New York office.
Following up on its site specific targeting program (SST) initiated one year ago, OSHA has announced its intention to develop a special national emphasis program (NEP) that will target nursing homes and other healthcare facilities. Such programs are intended to focus on workplaces that have consistently reported work-related injury and illness rates well above the national average for all industries. Although no start date has yet been determined, the proposed NEP would have an initial term of up to three years.
NEPs are designed to reduce the high injury and illness rates through increased inspections. In addition to the nursing and healthcare facilities, other industries currently targeted by OSHA through specific NEPs include manufacturing facilities and chemical plants. According to OSHA, the high injury and illness rate among nursing home employees results from constant exposure to sick and infirm patients, infectious diseases, physical stress from lifting patients and injuries from interaction with violent patients. Those most affected are nursing aides, attendants and orderlies, who disproportionately suffer musculoskeletal injuries in the workplace – more than sevenfold any other category of workers. Since many of these problems are not covered by specific OSHA standards, it is likely that OSHA will rely upon aggressive use of the OSH Act's general duty clause (GDC) to address those persistent and serious problems not otherwise covered by a specific standard. Under the Act, the GDC is a catchall provision that generally requires an employer to provide a work environment "free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."
Establishing a GDC Violation
In order to establish a GDC violation, OSHA must prove the following:
- the employer failed to keep the workplace free of a hazardous condition to which its employees were exposed
- the condition was one which was or should have been recognized by the employer as hazardous
- the hazard caused or was likely to cause death or serious physical harm
- there was a feasible means of abatement to correct the hazard
Although not yet officially in effect, nursing homes and other healthcare facilities may want to begin to consider plans to address these issues in order to be able to hit the ground running should the NEP be adopted. Investing the time and other resources now in self-audits and other review and analysis of operations, could prove to be advantageous and cost effective if OSHA should pay a visit. In the event your facility does get one or more citations under the GDC, we suggest you review these carefully with counsel in order to ensure that OSHA has met its burden for issuing such a citation.
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