OSHA in Health Care: Out of Sight & Out of Mind?

Health care might feel exempt, but it looks like we finally got OSHA's attention.

• By Scott Harris
• Apr 01, 2012

Health care workers (HCWs) include more than 16 million professionals, technicians, support workers, and others not directly providing patient care (i.e., maintenance and laundry), with approximately 4.6 million of those in hospitals.¹ In the May 6, 2010, Federal Register, OSHA published a Request for Information (RFI) to collect information from the health care industry on "occupational exposure to infectious agents in settings where healthcare is provided." This includes hospitals, outpatient clinics, clinics in schools, correctional facilities, and “health care-related” settings ranging from laboratories that handle potentially infectious materials to medical examiner offices to mortuaries. OSHA is specifically interested in current infection control strategies and practices and will use the information to "determine what action, if any, the Agency may take to further limit the spread of occupationally-acquired infectious diseases in these settings."² The deadline for comments was Aug. 4, 2010 and responses, still under review, totaled 502.³

OSHA Inspection Priorities
With only one inspector for every 66,258 covered employees4 in 7 million regulated workplaces in the United States, the District of Columbia, Puerto Rico, and the Virgin Islands, OSHA prioritizes inspections by (1) imminent danger situations, (2) fatalities and catastrophes, (3) complaints and referrals, (4) "programmed" or planned investigations of high-hazard industries or those with high injury and illness rates and follow-ups.⁵ They also develop National Emphasis Programs, such as for combustible dust (following a series of grain and sugar dust explosions) and microwave popcorn manufacturing facilities (exposure to butter flavoring chemicals), to address newly recognized hazards.⁶

OSHA 'Myths' Frequently Encountered Within Health Care

• "Health care is exempt from OSHA coverage." "OSHA uses the term 'general industry' to refer to all industries not included in agriculture, construction or maritime. General industries are regulated by OSHA's general industry standards, directives, and standard interpretations."⁷
• "OSHA does not inspect health care facilities." In FY2011, federal OSHA conducted 40,453 inspections,8 of which 138 (0.34%) were hospitals,⁹ while state OSHA programs conducted 56,733 inspections¹⁰ of which 233 (0.41%) were hospitals.¹¹ Gross annual numbers of inspections by state and federal OSHA have remained reasonably flat.¹²
• "OSHA does not cite health care facilities." Federal OSHA issued 436 citations to hospitals in FY2011. Top findings were bloodborne pathogens, hazard communication, electrical, and forms.13 OSHA data also reveal that while states collectively conduct more hospital inspections than federal OSHA, the efforts are not evenly distributed. Four states did no inspections of hospitals that year. Five states inspected but issued no citations, while the remaining 16 both inspected and cited.¹⁴
• These state plans cover only public-sector employees. Trends in state citations vary by state. For example in Maryland the top findings were formaldehyde, no chemical information list, hazard communication, and annual summaries,¹⁵ while Tennessee led with bloodborne pathogens, documentation of sharps injuries, 300 log maintenance, and woodworking machinery requirements.¹⁶
• "Our incident rates are low." From OSHA: "General medical and surgical hospitals (NAICS 6221) reported more injuries and illnesses than any other industry in 2007 -- more than 253,500 cases."¹⁷ In 2010, the private health care sector as a whole experienced 1.5 times (x) the injury and illness rate for private industry, with hospitals at 2x and nursing homes at 2.4x. Rates for state facilities were even higher, at 3.4x and 4.3x respectively (Figure 3).¹⁸ Hospitals again held the number one position in injury and illness cases with 258,200 reported.¹⁹
• "We have few complaints." From 2007 through most of FY2010, for both federal and state OSHA, approximately half of inspections done at hospitals each year were driven by complaints.²⁰ In FY2011 federal OSHA identified 55 percent of their hospital inspections as coming from complaints,²¹ while for states collectively the value was 48 percent.²² If unfamiliar with OSHA whistleblower protections,²³ know that OSHA is unforgiving of retaliation for safety complaints.
• "We have no high-profile issues." In the 2010 RFI, OSHA describes health care as having "a weak culture of worker safety" related to a lack of data on the prevalence of infections among HCWs and "a lack of effort by health care employers" in tracking or documenting them. OSHA thinks too many HCWs are getting sick at work and that voluntary standards are not working, largely due to poor safety programs and lack of regulatory oversight. This might also be an attempt to address nosocomials (health care-associated infections, HAIs), "among the leading causes of death in the United States, accounting for an estimated 1.7 million infections and 99,000 associated deaths in 2002," through protecting health care employees, since OSHA prominently notes that infectious agents are transmitted between employees and patients.²⁴ Based on the triggers for inspections, health care has accomplished all that is needed to get OSHA's attention: imminent danger and fatalities (1.7 million infections and 99,000 fatalities annually), high rates of injuries and illnesses (1.5-4.3x private industry average), and chronic complaints.

Comparative Fatality Statistics
For perspective on the relative magnitude of 99,000 HAI fatalities, consider these statistics on fatalities that generate many more headlines and much more public alarm.

From the CDC/HHS:

• 9,406 from AIDS in 2009²⁵
• 22,400 from drug overdoses in 2005²⁶
• 3,000 from foodborne illness (average)²⁷
• 10,878 from emphysema in 2009²⁸

From the FBI:

• 12,996 from murder in 2010²⁹

From the NTSB:

• 34,925 from highway, rail and aviation crashes in 2010³⁰

From the Bureau of Labor Statistics:

• 4,547 from workplace injuries in 2010³¹

These sources represent 98,200 fatalities per year. So based on OSHA's estimate, health care-associated infections -- these things you catch while you're there for something else -- kill more people in the United States every year than AIDS, drug overdoses, foodborne illness, emphysema, murder, highway, rail and aviation crashes, and workplace fatalities combined.

Society annually spends billions on awareness and prevention, security, treatment, safety engineering, research, gun control, regulations, government and private investigations, training, lawsuits, and media coverage on these threats, but when is the last time we heard more than passing mention of hospital-associated infections?

• "OSHA will use the General Duty Clause for infection control issues." In FY2011, federal OSHA used the GDC 3,314 times.³² Only one was for a hospital -- a case of workplace violence in New Jersey.³³ Based on its rare use at hospitals and the magnitude of the issue as framed in the RFI, infection control will almost certainly be addressed by specific regulatory action, not subjective GDC citations.
• "Joint Commission covers OSHA requirements." The most often repeated and perhaps most dangerous myth. The Joint Commission (TJC) standards do reference some OSHA requirements, i.e., MSDSs, proper labels for hazardous materials,32 fire protection, exits and life safety.³³ However, the most common hospital federal OSHA violations (bloodborne pathogens, hazard communication, electrical, forms) are not addressed by TJC with the exception of the mentioned labeling requirements. Let's be clear on this point: A perfect TJC score and full accreditation with no additional effort guarantees a failed OSHA inspection. That's not a slam against TJC; they are focused on patient safety, not employee safety, and that's OK because OSHA requirements are not TJC's job.

We're Finally Getting Their Attention
Lack of compliance, chronically high incidence rates, and years of neglect have finally paid off, and we are getting OSHA’s attention. As part of an Ergonomic Enforcement Plan (EEP), a 2012 Nursing Home NEP (National Emphasis Plan) will focus on ergonomic hazards related to patient handling, as well as exposures to bloodborne pathogens and TB and slips, trips, and falls.

Under the NEP approximately 1,000 nursing homes with the highest incidence rates will be inspected by specially trained teams. Enforcement for ergonomic hazards will be under the general duty clause.³⁴ The second part of OSHA's EEP is a "Data Initiative." Injury and illness data collected from approximately 80,000 establishments will identify those with the highest rates.³⁵ Hospitals are certain to make that list because their rates, though well below those of nursing homes, are consistently double the national average for general industry. Considering that incidence rates in health care are commonly thought to be under-reported, expect the already high rates to climb following this enforcement effort.

More than 380,000 sharps-related injuries occur annually in hospital settings, and an estimated 600,000 to 800,000 such injuries occur annually across the health care sector. Again, these high rates of injuries and non-compliance drove OSHA action. Region 4 OSHA has a Regional Emphasis Program in effect through Sept. 30, 2012, focused on bloodborne pathogen exposures and sharps/needlestick injuries at Ambulatory Surgical Centers (ASCs), emergency care clinics and primary care medical clinics.³⁶ More than half of surgeries in the United States are performed in ASC facilities, and in the last 10 years more than 130,000 patients served at ASCs were notified of potential hepatitis and/or HIV exposure due to "unsafe injection practices and lapses in infection control."³⁷

Penalties
It remains to be seen how many citations will be issued or how much the penalties might be related to these or other emphasis programs aimed at health care. Frankly, it probably depends on what it takes to make us "straighten up." Looking at FY2011, the cost per citation works out to only $838,³⁸ not exactly enough to scare a facility into compliance. Before anyone starts thinking that's cheap enough to just be the cost of doing business, consider the options OSHA has to ramp up the pain.

Serious violations (likely to harm or kill and the employer knew or should have known) can go up to $7,000 per violation. Willful violations (knowingly committed) have a minimum of $5,000 and can go up to $70,000. Repeat violations also go up to $70,000. Failure to abate (not correcting the violation on time) is worth up to $7,000.³⁹ And yes, you can get hit with a combination of these (think repeat serious, which easily becomes a willful...). Further, willful or repeat violations may also subject you to criminal or civil actions. OSHA has some discretion in assessing and settling penalties, but if it becomes apparent that low penalties are fueling disregard for the program, the easy fix is to just start adding zeros to the penalties. It is in everyone's best interest not to make them go there.

Conclusion
This is a wake-up call for health care. OSHA is using blunt language in characterizing health care as very poor safety performers. With 16+ million employees across thousands of sites, incident rates far higher than general industry norms, low inspection rates, complaints driving half of hospital inspections, and millions of infections and 99,000 fatalities per year, health care makes an attractive target.

The new emphasis programs for nursing homes, residential care facilities, and ASCs/clinics are probably just the beginning. An industry view of TJC accreditation as the only program that matters, combined with the relative lack of OSHA inspections and low penalties, has marginalized occupational health and safety programs within health care, created high incidence rates, and nurtured the myths discussed in this paper. Health care may see OSHA as an abstract concept, but OSHA has marked health care as a high-hazard industry.

The poor RFI response rate only strengthens OSHA's perception that health care is not serious about infection control. The setting begs for regulatory intervention, which OSHA asserts in the RFI was very successful in similar circumstances for bloodborne pathogens and TB. There are no health care exemptions to the OSHA requirements, and years of operating under the honor system haven't worked. Health care must put the same emphasis on OSHA programs as they currently give The Joint Commission. To do otherwise is negligence.

References
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This article originally appeared in the April 2012 issue of Occupational Health & Safety.