What OSHA’s new injury-reduction program means to LTC employers

Data released by the U.S. Bureau of Labor Statistics last fall prompted the Occupational Safety and Health Administration (OSHA) on April 5 to announce a new program that targets the high incidence of injuries to employees in the long-term care industry.

The referenced data showed a significant increase in injuries to employees in nursing homes and other healthcare facilities, especially as compared to employees in other industries such as manufacturing and mining. According to the data, the number of injuries increased 6 percent in 2010 for healthcare support employees in general, a rate that is nearly 2.5 times the rate for all private and public workers. The injury rate for nursing aides, orderlies and attendants rose 7 percent. Perhaps most notably, the rate of musculoskeletal injuries, which includes back injuries, increased 10 percent for those same workers.

OSHA’s program, a National Emphasis Program (NEP), is aimed at reducing these injuries. The NEP will have a three-year term and will cover establishments in three North American Industry Classification System categories: nursing homes, residential mental retardation facilities and continuing care retirement communities. Businesses such as assisted living facilities that do not have on-site nursing care will not be affected by the NEP.

SCOPE OF INSPECTION

The NEP provides specific instructions as to how OSHA compliance officers are to conduct their inspections. The primary focus of the inspection will be an evaluation of “resident handling” within the facility. Inspectors are required to evaluate whether the facility has adequate policies and procedures for lifting and transferring residents. The adequacy of the policies and procedures will be evaluated, in part, on the basis of whether employees were given the opportunity to provide input in the development of those policies and procedures.

In addition, inspectors will evaluate whether the establishment has adequate “lift, transfer or reposition” assistive devices available. On this point, OSHA cautions that no single lift-assistance device is appropriate in all circumstances. The facility’s “decision logic” for when to use assistive devices instead of manual transferring by employees will also be evaluated.

Another area being primed for inspection is the “lift, transfer or reposition” training that is provided to employees. The NEP encourages inspectors to videotape employees during resident handling activities, provided that informed, written consent is obtained from the resident or family members. Inspectors are directed to obtain facility census data and information regarding the degree of ambulation of the residents, as OSHA deems such information to be a good indicator of possible hazards at the facility.

In the name of maximizing agency resources, OSHA will afford corporate entities owning multiple facilities the opportunity to exempt its member facilities following a successful demonstration of a corporate-wide policy to address resident handling hazards. A corporate owner can make such a demonstration after OSHA has inspected at least six facilities within the corporate system and where OSHA has not issued a citation or hazard alert because of resident handling hazards at any of those six establishments.

While the NEP focuses on resident handling and the prevention of related musculoskeletal injuries, other injuries and illnesses will be addressed as well. For example, the NEP addresses injuries and illnesses such as bloodborne pathogens, tuberculosis, workplace violence and drug-resistant organisms (such as Methicillin-resistant Staphylococcus aureus, commonly known as MRSA).

The NEP also encourages its field offices to develop outreach programs to support the strategic goals of the NEP. Examples of the outreach include letters to employers, local unions, local safety councils and other industry employer organizations. The outreach will include OSHA-approved training tools designed to address the relevant hazards.

FACILITIES TO BE INSPECTED

OSHA plans to inspect LTC facilities with a “days away, restrictions and transfers” (DART) rate of 10 or higher in 2010. This means, for example, that OSHA could inspect any nursing home or continuing care retirement community that had 10 or more employees who missed at least one day of work because of work-related injury or illness during 2010. In arriving at this DART threshold, OSHA compared the DART rate of employees in nursing homes and continuing care retirement communities against the DART rate of employees for all private industry.

According to OSHA, the national average DART rate for private industry in 2010 was 1.8, while the rate for nursing homes and continuing care retirement communities was 5.6 and 4.7, respectively. The most frequently cited injury was musculoskeletal injuries related to resident handling. According to OSHA, this DART rate cut-off will position at least 700 facilities for possible inspection.

While OSHA eventually will make this list public, establishments on the list will have no way of determining whether they actually will be inspected. OSHA will assign each of the 700 facilities a random number, and inspections will be scheduled in the order called for by the random number assigned. Each OSHA area office will inspect at least three facilities in its geographic jurisdiction during the three-year term of the NEP.

Facilities in states that have their own workplace safety program will not be exempt from the NEP, as OSHA will require those states to participate in the federal program.

The NEP does provide new owners with a possible exemption from the program. According to the NEP, if an establishment selected for inspection has changed ownership since December 31, 2009, and has been under new ownership for more than six months, OSHA will recalculate that establishment’s DART for the period of new ownership. If the recalculated DART is below 10, OSHA will not proceed with the inspection.

WHAT NEP MEANS TO YOU

Employers in this industry must take proactive steps in the face of the NEP and also must consider the underlying factors that are likely to become more pronounced in coming years. As the Bureau of Labor Statistics’ data demonstrates, musculoskeletal injuries related to resident handling are the main source of all injuries to nursing home employees. In fact, OSHA noted that 48 percent of all reported injuries in nursing homes were due to overexertion.

Without proper resident handling procedures and policies, this particular injury is only likely to worsen as Americans become increasingly heavy. Currently, approximately 34 percent of adult Americans are considered obese, which is more than double the percentage of adult Americans who were considered obese in 1980. Such trends will make resident handling a more physically demanding duty for LTC employees. And because resident handling is such a critical job duty for these employees, it is imperative that employers plan accordingly.

While employers will not have advance notice of any inspection, they should conduct an internal audit of the DART rates at their facility. If the DART rate is 10 or more, employers should assume that their facility will be inspected. Employers can minimize or mitigate resident handling injuries by also conducting an audit of existing safety training programs, resident handling policies and procedures and related record-keeping practices. A modest investment of time and resources now will pay dividends if an OSHA inspector comes calling in the future.

Edward N. Boehm Jr. is an associate in the Atlanta office at Fisher & Phillips LLP. Boehm’s practice focuses on the defense of employment-related lawsuits in federal and state courts, including claims arising under Title VII, the American with Disabilities Act, the Fair Labor Standards Act and the National Labor Relations Act. He can be reached at tboehm@laborlawyers.com.

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