In an extremely important decision for employers, the United States Court of Appeals for the D.C. Circuit held that an employer can only be cited by OSHA for up to six months following the occurrence of an error or omission in its injury and illness record-keeping logs. In so holding, the Court restored the plain text of the Occupational Safety and Health Act (the "Act"), which provides that "no citation may be issued . . . after the expiration of six months following the occurrence of any violation." OSHA regulations require employers to maintain their injury and illness logs for five years from the end of the calendar year that those records cover. Relying on that regulation, OSHA had a longstanding practice of issuing citations up to five years following an alleged record-keeping violation. For the first time, an appeals court held that this practice is contrary to the explicit statute of limitations contained in the Act.
The Court's decision was unanimous, and none of the judges thought very highly of OSHA's arguments to extend the statute of limitations to five years for record-keeping violations. The Court stated that OSHA was "heroically attempt[ing]" to "tie this straightforward issue into a Gordian knot," and was "kick[ing] up" a "cloud of dust . . . in an effort to lead us to [the Secretary of Labor's] interpretation."
While employers may still be cited beyond the six-month statute of limitations if violations are continuing or ongoing, this decision will have a significant impact on OSHA's enforcement of employers' record-keeping obligations. OSHA has 90 days from the date of the decision to file a petition for writ of certiorari to the Supreme Court if it wishes to appeal the Court's decision.
On April 5, the Occupational Safety and Health Administration ("OSHA") announced a new National Emphasis Program ("NEP") for inspecting nursing homes and residential facilities. This is an important announcement, because for most employers, there are only a few reasons why OSHA may inspect an employer's worksite: (1) the worksite's injury and illness rate places it within OSHA's Site-Specific Targeting program; (2) the occurrence of a work-related accident that causes a fatality or hospitalizes three or more employees; (3) a referral from another law-enforcement agency; (4) an inspector withesses a possible violation in "plain view" or from media reports; (5) an employee complaint; or (6) a follow-up from a previous inspection.
However, OSHA also has the authority to create regional and national emphasis programs for particular industries. Using that authority, OSHA has announced that it will inspect nursing homes and residential facilities nationwide that had a Days Away, Restricted, or Transferred ("DART") rate in 2010 of 10.0 or more. The directive implementing the NEP also states that each Area Office will inspect at least three nursing homes or residential facilities within its jurisdiction each year under this program. Thus, nursing homes or residential facilities with a 2010 DART rate of 10.0 or more should consult with their safety personnel and legal counsel to prepare for the likelihood of an OSHA inspection.
Just in time for the Winter Solstice, the Occupational Safety and Health Administration ("OSHA") issued a press release on December 21, 2011, advising that the agency launched a web page devoted to hazards workers may face during winter storm response and recovery operations.
OSHA's new web page contains guidance on how employers and workers who are involved in cleanup and recovery operations can avoid injuries and illnesses related to snow storms and other weather conditions. For example, OSHA offers advice on how to prepare a vehicle for the winter season, how to avoid back aches and heart attacks while shoveling snow, how to safely walk on ice, etc. Industry-specific guidance on the new web page includes a section on utility workers' repair of downed or damaged power lines.
The web page also identifies several hazards that are associated with working in winter storms, including: being struck by falling objects, such as icicles, tree limbs, and utility poles; driving accidents; carbon monoxide poisoning; dehydration, hypothermia, and frostbite; and falling while walking on slippery walkways.
The new web page also includes links to guidance from OSHA, the Federal Emergency Management Agency ("FEMA"), the American Red Cross, the National Weather Service, the National Oceanic and Atmospheric Administration, the Centers for Disease Control and Prevention, the National Safety Council, and other agencies and organizations.
On October 22, 2009, New York State Commissioner of Health Richard F. Daines, M.D., suspended the mandatory influenza immunization requirement for New York State health care workers due to a shortage of available vaccines. In a letter dated October 23, 2009, the Commissioner wrote that the current emergency regulations requiring vaccination would expire on November 11, 2009, and that no new emergency regulations would be promulgated. Rather, the Department will propose a permanent regulation requiring vaccination of health care personnel in the facilities covered by the emergency regulation and post the draft for a period of public comment. The Department of Health now stresses that the limited vaccine supply should be prioritized for patients and those most at risk (pregnant women, and children and young people between the ages of 6 months and 24 years).
The emergency regulations went into effect on August 13, 2009, and required all covered health care facilities in New York State to ensure that health care personnel having direct patient contact were immunized against both seasonal influenza as well as the H1N1 virus. The mandate applied to personnel in hospitals, diagnostic and treatment centers, home care services agencies, certified home health agencies, licensed home care services agencies, long term home health programs, and hospice programs. The regulations required that personnel commencing employment on or after November 30, 2009, be immunized and that existing personnel receive annual vaccinations before November 30 of each year. The only health care personnel exempt from the vaccination requirement were those who provided documentation from a licensed physician or certified nurse practitioner certifying that vaccination would be detrimental to the health of the individual.
The Commissioner’s most recent action was permitted by the emergency regulations, which state that if “the commissioner determines the vaccine supplies are not adequate given the numbers of personnel to be vaccinated or vaccine(s) are not reasonably available, the commissioner may suspend the requirements(s) to vaccinate and/or change the annual deadline for such vaccinations.” This past summer, both the federal government and the Centers for Disease Control and Prevention (CDC) estimated that upwards of 120 to 200 million doses of H1N1 vaccine would be available nationwide by the end of November. After receiving reports from the CDC that New York would in fact only receive 23 percent of its anticipated H1N1 vaccine supply, and that the amount of seasonal flu vaccine available to the State would also fall short of the increased demand, the Commissioner of Health suspended the mandate.
The suspension comes just six days after three nurses filed suit in Albany County Supreme Court alleging that the mandatory vaccination requirement violates the civil rights of health care workers. After consolidating the nurses’ suit with two other lawsuits, the Court issued a temporary restraining order on the mandate and scheduled further hearings to take place on October 30.
Nicholas Fusco assisted in the preparation of this post.
On August 19, 2009, the Centers for Disease Control (CDC) released CDC Guidance for Businesses and Employers to Plan and Respond to the 2009-2010 Influenza Season, a set of guidelines and information to assist employers in planning for the coming H1N1 influenza season. This blog post only summarizes some aspects of the Guidance, which is extensive and detailed. Before taking any action, review the entire Guidance and associated material at www.flu.gov.
The new Guidance stresses that employers should develop a flexible pandemic response plan which can be adjusted depending on the level of severity of the flu outbreak. The Guidance advises employers to key their level of actual response to advice from local public health authorities. As a baseline, the guidance stresses that “during an influenza pandemic, all sick people should stay home and away from the workplace, hand washing and covering coughs and sneezes should be encouraged, and routine cleaning of commonly touched surfaces should be performed regularly.”
If current flu conditions persist, the CDC’s recommended responses include: advising sick employees to go home; encouraging employees to get vaccinated; taking measures to protect employees who are at higher risk for complications of influenza (i.e. pregnant women, individuals with chronic lung disease, heart disease, diabetes, immune system disorders and other chronic medical conditions); advising employees who travel frequently to take certain steps in advance of their business trips; and preparing for the possibility of temporary closure of schools and child care programs.
If, however, the 2009-2010 H1N1 flu outbreak becomes more severe than the spring/summer 2009 outbreak, the CDC recommends additional responses, including: actively screening employees who report to work for flu like symptoms (e.g. asking employees at the beginning of shift about symptoms); considering alternative work environments for employees at high risk of complications of influenza; considering “social distancing” in the workplace (the goal should be at least 6 feet of distance between people at most times); and canceling all non-essential business travel.
The Federal Government’s flu website, www.flu.gov, contains a wealth of additional information to assist employers in developing a plan and communicating with employees, including, a variety of helpful checklists and forms. The website will be updated continually throughout the coming flu season.
