OSHA Issues First COVID-19 Related Citation to Nursing Home in Georgia

The Occupational Safety and Health Administration (OSHA) has issued its first COVID-19 related citations to a nursing home. OSHA claims that six nursing home employees in Georgia were hospitalized as a result of COVID-19 that they allegedly contracted while at work, and that the nursing home failed to report the hospitalizations to OSHA within the statutorily mandated time period. (Employees were hospitalized around April 19, but report was not made to OSHA until May 5.) OSHA has proposed a $6,500 fine for the “other than serious” citation.

Generally, employers must report incidents to OSHA within twenty four hours when an employee suffers a work-related in-patient hospitalization. This includes instances in which an employee is hospitalized because of COVID-19 if the employee contracted COVID-19 while at work and the hospitalization occurs within 24 hours of the employee contracting the virus. (Refer to 29 CFR 1904.39(b)(6)).

  • When several cases develop among workers who work closely together;
  • If it is contracted after lengthy, close exposure to a customer or coworker who has a confirmed case of COVID-19; or
  • If an employee’s job duties include having frequent, close exposure to the general public in a locality with widespread transmission.

You can find OSHA’s May 19, 2020 guidance on COVID-19 infection record keeping here: https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-2019-covid- 19#:~:text=Under%20OSHA’s%20recordkeeping%20requirements%2C%20COVID,Prevention%20(CDC)%3B%5B2%5D

In the case of the Georgia nursing home, OSHA stressed that the widespread transmission of COVID-19 in nursing homes in general, and the fact that six employees in this particular nursing home tested positive for COVID-19 should have been an indication to the employer that the virus was work-related.

Bottom line: Employers must make themselves aware of OSHA’s reporting and recording obligations, and consider them each time an employee tests positive for COVID-19.

U.S. House of Representatives Urges OSHA to Create a Standard Regarding Workplace Violence in the Healthcare Industry

You may recall from our prior updates that the Occupational Safety and Health Administration (OSHA) has been concerned with the prevalence of injuries suffered by healthcare and social service employees due to work-related violence for some time. Lacking a specific standard applicable to this risk, OSHA has usually relied on the General Duty Clause to address this issue. However, in 2015 OSHA issued an updated voluntary guideline for violence prevention in healthcare and social services (https://www.shrm.org/ResourcesAndTools/hr-topics/risk-management/Documents/osha3148.pdf) and in 2016 OSHA proposed a specific Standard covering violence in the healthcare and social service sectors. Unfortunately, the proposed Standard has languished and there has been little progress in moving it towards completion in the past three years. Continue reading “U.S. House of Representatives Urges OSHA to Create a Standard Regarding Workplace Violence in the Healthcare Industry”

OSHA Withdraws Fairfax Memo, Employers Are No Longer Required to Allow Non-Employees to Accompany OSHA Investigators

Good news! OSHA has rescinded an interpretation letter commonly referred to as the “Fairfax Memo.” It has also removed a related guidance from OSHA’s Field Operations Manual.

The Fairfax Memo mandated that non-employees, aka union business agents, must be permitted to accompany OSHA during the walk-around portion of an inspection.  Examples mentioned in the memo of who could participate in the inspection included officials of labor organizations that did not represent the employer’s employees and “community organizers.” Continue reading “OSHA Withdraws Fairfax Memo, Employers Are No Longer Required to Allow Non-Employees to Accompany OSHA Investigators”

OSHA Delays Enforcement of Anti-Retaliation Provisions – Again

The Occupational Safety and Health Administration (OSHA) announced today that it will delay enforcement of the anti-retaliation provisions of the revised recordkeeping regulation until December 1, 2016. This delay is at the request of the Texas Court considering the Complaint and request for injunction filed by several industry groups in Texas. This is the second time that OSHA has delayed implementation of the new regulation.

Employers should plan as if OSHA will begin to enforce the new regulation on December 1 and consider how to revise their post-accident and safety incentive policies.

OSHA Tries to Make Workers Safer by Making Post-Accident Drug Screens and Safety-Incentive Programs More Difficult to Apply

On May 12, 2016 the Occupational Safety and Health Administration (OSHA) published a final Rule requiring many employers to submit illness and injury data electronically. This provision has been widely publicized and will take effect January 1, 2017. However, the new Rule also contains a much less publicized provision requiring employers to implement reasonable procedures for employees to report workplace illnesses and injuries promptly and accurately. This provision also contains anti-retaliation language providing that no such procedure can deter or discourage an employee from making a report. This provision of the Rule was initially set to go into effect August 10, 2016 but, due to suits filed by various pro-business interests, OSHA has agreed to refrain from implementing this provision until November 1, 2016. In theory, the anti-retaliation provision of the new Rule sounds logical. However, OSHA’s construction of the rule may be less so. Continue reading “OSHA Tries to Make Workers Safer by Making Post-Accident Drug Screens and Safety-Incentive Programs More Difficult to Apply”

Healthcare Providers Beware, OSHA Is Targeting Your Workplace Violence Programs, And it Is Going to Cost You…

If you have been reading the tea leaves lately, you have noticed that the federal government has recently taken steps designed to reduce the number of injuries suffered by workers in healthcare industries due to assaults. While the goal is laudable, the process may well end up costing you dearly. Continue reading “Healthcare Providers Beware, OSHA Is Targeting Your Workplace Violence Programs, And it Is Going to Cost You…”

OSHA Says that Fainting at the Sight of Blood is Recordable

Last week the Occupational Safety and Health Administration issued an interpretation letter indicating that fainting may be a recordable event even if the loss of consciousness was due to a non-recordable injury.

In the circumstance leading to the interpretation letter, an employee scratched his finger while at work. While a co-worker applied a band aid to the scratch, the “injured” employee saw his own blood and fainted. The employee explained that he cannot stand the sight of his own blood. He did not require any treatment beyond the band aid no other injury occurred beyond the scratched finger. Continue reading “OSHA Says that Fainting at the Sight of Blood is Recordable”

OSHA Issues a Transgender Bathroom Usage Guidance

On June 1, 2015 OSHA issued a Best Practices Guide to Restroom Access for Transgender Workers. The Guidance can be found here.

In short, the Guidance states Transgender_Bathroom_Signthat employers should allow the employee in question to determine which restroom provides the “most appropriate and safest option for him-or herself.” The guidanc
e also provides some best practices, including that the employer allow, but not require, employees to use single-occupancy gender-neutral facilities and multiple-occupancy gender-neutral facilities with lockable single-occupant stalls. (I suppose we should be grateful that OSHA has not yet recommended multiple-occupant gender-neutral lockable stalls.) Continue reading “OSHA Issues a Transgender Bathroom Usage Guidance”

OSHA Regulations Expanded to Require Automobile Dealers to Maintain OSHA 300 Logs

car-dealershipIn the past, new and used car dealers were among the industries that were generally exempt from maintaining OSHA 300, Injury and Illness Logs and posting OSHA form 300A, Summary of Work-Related Injuries and Illnesses. However, effective January 1, 2015, OSHA will require both new and used car dealers to maintain OSHA 300 logs and post OSHA 300A logs. Generally OSHA 300 logs deal with recordable, as opposed to reportable, injuries and illnesses. The types of instances that must be included on the OSHA 300 logs can be found at 29 C.F.R. 1904, et seq. Continue reading “OSHA Regulations Expanded to Require Automobile Dealers to Maintain OSHA 300 Logs”

A Couple Action Items for HR in 2015

I. Should you add sexual orientation and transgender status to your harassment/discrimination policies?
As most HR professionals know, federal law does not facially include sexual orientation or trans-gender status as protected categories. And, while some states and cities have passed their own laws protecting these groups, leaving employers to comply with a patchwork of state and local laws  (Houston, Texas passed such an ordinance in 2014.), neither Louisiana nor Baton Rouge have done so. However, the United States Attorney General issued a memorandum in December 2014, making clear the federal government’s position that Title VII of the Civil Rights Act of 1964 should be interpreted as covering transgender employees.

Continue reading “A Couple Action Items for HR in 2015”