Is OSHA neglecting its duty to protect health care workers?
Agency promises to hold employers accountable’
An aide in a state-run nursing home is more likely to be injured than a police officer. More work-related injuries and illnesses occurred in the nation’s hospitals than in any other industry in 2011. Nursing assistants suffered more serious musculoskeletal injuries than truck drivers, according to the U.S. Bureau of Labor Statistics.1
Financial Disclosure: Editor Michele Marill, Executive Editor Gary Evans, and Consulting Editor/Nurse Planner MaryAnn Gruden report no consultant, stockholder, speaker’s bureau, research, or other financial relationships with companies having ties to this field of study.
Yet despite a "national emphasis program" to target inspections on the nursing home industry, the U.S. Occupational Safety and Health Administration (OSHA) has rarely used its enforcement latitude on the single most common cause of injury in health care — overexertion due to patient handling. OSHA has never used its "general duty" clause powers to cite a hospital for patient handling injuries. And in about 1000 inspections of nursing homes in the past two years, OSHA inspectors issued only seven such citations.
Some 25,000 nursing assistants and almost 12,000 registered nurses suffered MSD injuries in 2011 that required days away from work, according to the U.S. Bureau of Labor Statistics.
The "general duty" clause of the Occupational Safety and Health Act of 1970, which created OSHA, requires employers to maintain a workplace "free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees."
It has been used thousands of times from 2010 to 2012 to address other hazards in health care and other industries. For example, nine hospitals were cited under the general duty clause in that timeframe for incidents related to workplace violence, most commonly related to assaults by psychiatric patients.
The lack of MSD-related general duty citations reflects a broader failure by OSHA to address hazards in the health care industry, which has the nation’s fastest growing workforce, according to a report by the Washington, DC-based advocacy group, Public Citizen.2
In an emailed response to HEH, OSHA said it has turned its focus to health care. "Employers have the legal responsibility of providing workplaces free of recognized hazards. They must take ownership over this issue, and our role is to see that they do," OSHA said.
"OSHA has a variety of tools at its disposal to hold employers accountable for safety and health, and we are committed to improving safety and health conditions for our nation’s health care workers. Under this administration, OSHA has done more than any previous administration to address the issues that persist in this industry."
More injuries, fewer inspections
Still, inspections statistics show that the nation’s worker safety efforts are skewed toward industries that involve traditional manual labor, where heavy loads are handled with fork lifts and dollies.
In 2010, almost as many injuries requiring days away from work occurred in the healthcare and social assistance sector (176,380) as in construction and manufacturing combined (74,950 and 127,140), yet the healthcare and social assistance sector had less than one-twentieth of the number of inspections as those other major industries, according to the Public Citizen report, "Healthcare Workers Unprotected."
While construction and manufacturing have a higher number of fatalities, health care has a higher rate of injuries overall.
"The sad part about all this is that OSHA knows. OSHA would be the first to agree that health care workers are exposed to many hazards," says co-author Keith Wrightson, a worker health and safety advocate for Public Citizen.
OSHA has too few resources, too much interference from Congress, and an inability to create new regulatory standards to address modern work hazards, the report says. For example, Congress rescinded a comprehensive ergonomics standard in 2001 in an action that prohibits the agency from issuing a "substantially similar" regulation.
"I think it’s beyond dispute that this agency has tremendous political interference in trying to fulfill its mandate," says Taylor Lincoln, a research director for Public Citizen and report co-author. "It is the law of the land that it’s the government’s job to provide for safe workplaces. OSHA acknowledges that there are pressing concerns that they’re not addressing because they can’t."
In the past few years, OSHA rulemaking has virtually ground to a halt. But despite political headwinds and a climate of budget-cutting, the agency has asked for an additional $2 million to develop new standards. With new money to fund scientific, technological and economic analyses, the agency optimistically predicts it could issue a final infectious diseases rule in Fiscal Year 2014, which ends September 30, 2014.
"OSHA’s current highest rulemaking priority is the Injury and Illness Prevention Program (I2P2) rule," the agency said in its Congressional Budget Justification. "I2P2 will produce a significant change in how workplace safety is approached in this country and will substantially reduce the number and severity of workplace injuries "
In an even more daunting item on OSHA’s wish list, the agency said it wants to update permissible exposure limits on chemicals.
A change in philosophy
Despite the obstacles, OSHA is using some new strategies to address the imbalance between hazards and enforcement.
General-duty clause citations are difficult and time-consuming to document, but OSHA promises to try harder. In its Congressional Budget Justification, the agency acknowledges that an emphasis on continually raising the number of inspections conducted makes it less likely that inspectors will focus on those time-consuming issues.
"Under the current system, the only incentive for a compliance officer is to meet the inspection goals. There is no incentive for them to do the larger, more complicated inspections," OSHA said.
OSHA said it will change its philosophy of enforcement to conduct fewer but more complex inspections in high hazard industries. "OSHA will prioritize its resources to programs and initiatives capable of achieving the greatest impact on improving workplace safety and health, addressing new and emerging hazards in safety and health," the agency said.
How much of this new attention will be directed toward health care? Nursing homes are in the spotlight because of the three-year National Emphasis Program. But in its budget document, OSHA specifically mentions industries with a high risk of fatalities, such as construction. There is no mention of health care, beyond nursing homes.
In public statements, OSHA administrator David Michaels, MD, MPH, has vowed to address health care hazards. "It is unacceptable that the workers who have dedicated their lives to caring for our loved ones when they are sick are the very same workers who face the highest risk of work-related injury and illness," he said.
Outreach letters target MSD hazards
When OSHA doesn’t have enough information to document an ergonomics citation under the general duty clause, the agency sends out "hazard alert" letters as a warning to employers. In Region 3, which encompasses Pennsylvania, Delaware, Maryland, Virginia, West Virginia and the District of Columbia, the agency has gone a step farther.
The regional office sent 2,200 letters to health care facilities, offering information and assistance to reduce musculoskeletal disorder (MSD) hazards.
"We’re trying to bring awareness to the industry of this alarming injury trend," says Regional Administrator MaryAnn Garrahan. "We’re looking for better compliance through effective injury and illness prevention programs."
OSHA also has found an effective partner for getting the word out: the Center of Medicare & Medicaid Services (CMS). CMS will disseminate guidance and best practices on safe patient handling through its Hospital Engagement Network, Garrahan says.
The awareness campaign also potentially lays the groundwork for further enforcement. The general duty clause applies to "recognized hazards" — and health care employers would be hard-pressed to say that patient handling is not a recognized hazard.
Inspectors also are gaining awareness of hazards in health care, Garrahan says. "Certainly, there has been a reemphasis since 2011, in terms of getting our people better trained in using our general duty clause to be able to cite for MSD hazards in the workplace," she says.
- Bureau of Labor Statistics, U.S. Department of Labor. Non-fatal occupational injuries and illnesses requiring days away from work, 2011. Available at www.bls.gov/news.release/pdf/osh2.pdf. Accessed on July 30, 2013.
- Wrightson K and Lincoln T. Health Care Workers Unprotected. Public Citizen, 2013. Available at http://www.citizen.org/documents/health-care-workers-unprotected-2013-report.pdf. Accessed on July 30, 2013.