UPDATE - HCPro

Dear HCPro Customer:

Enclosed is your latest supplement to the OSHA Program Manual for Dental Facilities. This supplement is designed to keep your product up to date. Your next supplement will be in March 2016.

If you have any questions about your subscription, please contact our Customer Service department at 800-650-6787 or e-mail [email protected]. At HCPro, customer comments and suggestions are very important to us—let us know how we can serve you better.

Please insert these new and revised pages as indicated, and keep these filing instructions at the front of your book.

FILING INSTRUCTIONS

Rev. 1/16 OPMFDF Supplement to OSHA Program Manual for Dental Facilities

VISIT www.hcmarketplace.com for the latest compliance and training information.

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ix/x ix/x OSHA Program Manual Contents—updated

Tab 1 Contents Tab 1 Contents updated

1-1 through 1-14 1-1 through 1-15 Tab 1: OSHA Jurisdictions & Inspections—updated

January 2016 Revisions

Dear HCPro Customer:

Enclosed is your latest supplement to the OSHA Program Manual for Dental Facilities. This supplement isdesigned to keep your product up to date.

If you have any questions about your subscription, please contact our Customer Service department at 800-650-6787 or e-mail [email protected]. At HCPro, customer comments and suggestions are veryimportant to us—let us know how we can serve you better.

February 2014 Revisions

Rev. 2/14 OPMFDF (22055)

Please insert these new and revised pages as indicated, and keep these filing instructions at the front of your book.

Remove Insert Reason for ChangeTitle page Title pages updated

i through xix i through xix Front Matter—updated

Tab 5 Contents Tab 5 Contents updated

5-1 through 5-65 5-1 through 5-65 Tab 5: Bloodborne Pathogens Exposure Control Plan—updated

FILING INSTRUCTIONS

Supplement to OSHA Program Manual for Dental Facilities

VISIT www.blr.com for the latest compliance and training information.

UPDATE to

a division of BLR

About the AuthorMarge McFarlane, PhD, MT (ASCP), CHSP, CHFM, CJCP, HEM, MEP, CHEP, is an independent safety consultant with more than 38 years of healthcare experience. She has provided education, emergency management and safety plan review, life safety, and infection prevention facility surveys for healthcare and businesses in Wisconsin and across the nation since 2005. She is the author of The Compliance Guide to the OSHA GHS Standard for Hazardous Chemical Labeling, 2014 and the OSHA Training Handbook for Healthcare Facilities, Second Edition, 2014. 16A

©2005–2015. HCPro, a division of BLR. All rights reserved, including right of reproduction. The author(s) and their

agent(s) have made every reasonable effort in the preparation of this publication to ensure the accuracy of the information.

However, the information in this book is sold without warranty, either expressed or implied. The authors, the editors, their

agents, and the publishers will not be liable for any damages caused or alleged to be caused directly, indirectly, incidentally,

or consequentially by the information in this publication. This publication cannot and does not provide specific information

for a user’s exact situation. Users of this publication should exercise their own judgment and, where appropriate, seek the

assistance of legal counsel regarding their particular situation.

HCPro, a division of BLR75 Sylvan Street, Suite A-101

Danvers, MA 01923Tel: 800/650-6787Fax: 800/639-8511

www.hcmarketplace.com

OSHAPROGRAMMANUALfor Dental Facilities

OSHA Program Manual for Dental Facilities is published by HCPro, a division of BLR.

Copyright © 2016 HCPro, a division of BLR.

All rights reserved. Printed in the United States of America. 5 4 3 2 1

ISBN: 978-1-60146-744-7

No part of this publication may be reproduced, in any form or by any means, without prior written consent of

HCPro, a division of BLR, or the Copyright Clearance Center (978-750-8400). Please notify us immediately

if you have received an unauthorized copy.

HCPro, a division of BLR, provides information resources for the healthcare industry.

HCPro, a division of BLR, is not affiliated in any way with The Joint Commission, which owns the JCAHO

and Joint Commission trademarks.

Marge McFarlane, PhD, MT (ASCP), CHSP, CHFM, CJCP, HEM, MEP, CHEP, Author

Sheila Dunn, DA, MT (ASCP), Contributing Editor

John Palmer, Managing Editor

Mike Mirabello, Fulfillment Specialist

Glenn Stefanovics, Content Management Specialist

Matt Sharpe, Senior Manager of Production

Elizabeth Petersen, Vice President

Advice given is general. Readers should consult professional counsel for specific legal, ethical, or

clinical questions.

Arrangements can be made for quantity discounts. For more information, contact:

HCPro, a division of BLR

75 Sylvan Street, Suite A-101

Danvers, MA 01923

Telephone: 800-650-6787 or 781-639-1872

Fax: 800-639-8511

E-mail: [email protected]

Visit HCPro online at: www.hcpro.com and www.hcmarketplace.com

1/16

ix

IntroductionImportant Information About the Use of This Program ............................ iHow to Customize this Program ................................................................. iiiMaster List of Program Items for Customization ...................................... vWhat Is Included in This Program ............................................................... vii

TAB 1: OSHA Jurisdictions & InspectionsA Quick Look at OSHA .................................................................................. 1-1

States with OSHA-Approved Plans ..................................................................................... 1-1OSHA Consultative Services Division ................................................................................. 1-2OSHA’s Jurisdiction ............................................................................................................. 1-2OSHA’s General Duty Clause .............................................................................................. 1-2

Employee or Employer? ............................................................................... 1-4Employer Responsibilities Under OSHA ............................................................................. 1-4

Overview of OSHA Standards ...................................................................... 1-5

OSHA Inspections ......................................................................................... 1-6Employee Complaints .......................................................................................................... 1-6If an On-site OSHA Inspection Occurs ................................................................................ 1-6During the Inspection .......................................................................................................... 1-8What OSHA Inspectors May Ask Employees ...................................................................... 1-8The Typical OSHA Inspection .............................................................................................. 1-9The Closing Conference ...................................................................................................... 1-9

OSHA Sanctions ............................................................................................ 1-11

Whistleblower Protection ............................................................................. 1-13

Students and Volunteers ............................................................................... 1-15

OSHA PROGRAM MANUAL

Contents

Front Pocket OSHA Poster 3165: IT’S THE LAW! Laminated Eyewash Station Sign 4 Sample Biohazard SelfAdhesive Labels CDROM (MS Word for Windows 2000) with Master Record Forms (Tab 8) from this Manual

for Customization.

Page

x

Contents

TAB 2: Injury & Illness Prevention ProgramInjury & Illness Prevention Plan .................................................................. 2-1

Management Leadership and Employee Involvement ........................................................ 21Key Contacts for the OSHA Safety Program ....................................................................... 22Location of the OSHA Safety Program ................................................................................ 22

Duties of the OSHA Safety Officer ............................................................... 2-2Accident/Incident Investigation & Reporting Procedure .......................... 2-3

Definition of an Accident/Incident and/or Near-Miss Event ................................................. 24When to Investigate an Accident/Incident ........................................................................... 24How to Document an Accident/Incident ............................................................................... 24Recording Accidents or Injuries for OSHA ........................................................................... 25Correcting Unsafe or at Risk Conditions ............................................................................. 25

Recordkeeping Requirements ..................................................................... 2-5Equipment & Facility Records ............................................................................................. 25Bloodborne Pathogens Records ......................................................................................... 26Hazard Communication Records ........................................................................................ 26TB Records/Respiratory Protection Program ...................................................................... 26Employee Medical Records ................................................................................................. 26Evaluating Exposure Incidents ............................................................................................ 27

Workplace Hazard Analysis ......................................................................... 2-7Employee Training ........................................................................................ 2-9

Checklist for an Effective Safety Training Session .............................................................. 29Interactive Safety Training Exercises .................................................................................. 210

General Safety ............................................................................................................ 210Fire Safety ................................................................................................................... 210Bloodborne Pathogens Safety ..................................................................................... 210Chemical Safety ........................................................................................................... 211TB Safety ..................................................................................................................... 211

Annual Employee Retraining ....................................................................... 2-11Bloodborne Pathogens Annual Training Contents ............................................................... 212Respiratory Protection Annual Training Contents ................................................................ 213Hazard Communication Annual Training Contents .............................................................. 213

New Employee Orientation .......................................................................... 2-13Documenting Employee Training ............................................................... 2-13OSHA Annual Retraining Sample Test Questions ..................................... 2-14Practical Ideas for Administering the OSHA Safety Program .................. 2-17Organizing OSHA Compliance Duties ........................................................ 2-17Weekly Facility Review Checklist ............................................................... 2-19Monthly Facility Review Checklist .............................................................. 2-20Annual Facility Review Checklist ............................................................... 2-21Annual OSHA Safety Program (Exposure Control Plan) Review Form ... 2-24

TAB 1: OSHA JURISDICTIONS & INSPECTIONS

Contents

A Quick Look at OSHA ..................................................................................... 1-1States with OSHA-Approved Plans .........................................................................................1-1OSHA Consultative Services Division ....................................................................................1-2OSHA’s Jurisdiction .................................................................................................................1-2OSHA’s General Duty Clause .................................................................................................1-2

Employee or Employer? .................................................................................. 1-4Employer Responsibilities Under OSHA .................................................................................1-4

Overview of OSHA Standards ......................................................................... 1-5

OSHA Inspections ............................................................................................ 1-6Employee Complaints .............................................................................................................1-6If an On-site OSHA Inspection Occurs ...................................................................................1-6During the Inspection ..............................................................................................................1-8What OSHA Inspectors May Ask Employees ..........................................................................1-8The Typical OSHA Inspection .................................................................................................1-9The Closing Conference .........................................................................................................1-9

OSHA Sanctions ............................................................................................... 1-11

Whistleblower Protection ................................................................................. 1-13

Students and Volunteers .................................................................................. 1-15

Page

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OSHA Program Manual for Dental Facilities

TAB 1: OSHA JURISDICTIONS & INSPECTIONS

A Quick Look at OSHA

OSHA is the Occupational Safety and Health Administration, part of the U.S. Depart-ment of Labor. President Richard M. Nixon signed the Occupational Safety and Health (OSH) Act on December 29, 1970, which is responsible for ensuring workplace safety and health protection.

There are currently 28 states and territories with their own OSHA plan. Of these 28 states and territories, 22 have jurisdiction over private and public (state and local government) sector employees. Connecticut, Illinois, New Jersey, New York, and the Virgin Islands plans cover public employees only, whereas federal OSHA covers private sector employers. In all remaining states, federal OSHA assumes jurisdiction for private sector employers.

States with OSHA-Approved Plans

Alaska Arizona California Connecticut* Hawaii Illinois* Indiana Iowa Kentucky Maine** Maryland Michigan Minnesota Nevada New Jersey* New Mexico New York* North Carolina Oregon Puerto Rico South Carolina Tennessee Utah Vermont Virginia Virgin Islands* Washington Wyoming

*State plan applies to public employees only. ** Initial approval 8/5/15.

Most states with their own OSHA plans are identical to the federal OSHA standards for dental offices, but if you are operating under an OSHA state plan (see list above), contact the state to determine how its requirements differ from federal OSHA’s. For additional information, go to http://www.osha.gov/dcsp.osp.

OSHA regulations are published in the Federal Register. It is impractical for a typical dental practice to obtain and read the Federal Register on a daily basis. For this reason, HCPro, Inc. does just that and keeps dental facilities abreast of OSHA’s latest requirements via Medical Environment Update Newsletter updates.

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OSHA Consultative Services DivisionThe OSHA Consultative Services Division office is staffed with OSHA consultants who have received the same training as OSHA inspectors, but who give practical advice about OSHA regulations. They do not issue citations or penalties and do not share in-for-mation with OSHA’s federal inspectors. OSHA’s consultants can often answer telephone compliance questions, but be sure to ask for a consultant whose expertise is dental. Occasionally, OSHA consultants will agree to perform a mock inspection upon request. This service is free, but any corrective actions recommended during a mock inspection must be implemented, or penalties will be assessed. For additional information, go to http://www.osha.gov/dcsp/smallbusiness/consult_directory.html.

OSHA’s JurisdictionOSHA regulates virtually every workplace ranging from hospitals to construction sites. Federal OSHA does not have jurisdiction over facilities where the Federal Aviation Administration, Department of Energy, Department of Transportation, or Federal Rail-way Administration assumes responsibility and enforces worker safety and health regulations. In all other workplaces, federal OSHA regulates workplace safety and health.

OSHA’s General Duty ClauseOSHA has issued workplace guidelines, often derived from government agencies such as the CDC, NIOSH, and the American National Standards Institute (ANSI), that specifically address safety in the healthcare industry. Although these guidelines do not carry the force of OSHA regulations under which employers may be cited, employers who fail to provide a safe and healthy workplace may be cited under OSHA’s general duty clause or sued under a variety of common law tort theories. These recommenda-tions, where applicable, are provided in this OSHA Program Manual. Keeping a work-place safe is a joint effort between employers and employees. Employers need to have the proper documented policies, proper equipment and materials, and proper supervision. Employees need to have the proper knowledge and comply with the policies set out by the employers.

OSHA’s general duty clause imposes a duty on the employer to:

“… furnish to each of his employees a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

To establish a violation of the OSH Act’s general duty clause, OSHA must prove that all of the following conditions existed:

� The employer failed to render the workplace free of a hazard. � The hazard was causing or was likely to cause death or serious physical harm.

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� The employer or industry had knowledge that the condition or practice was hazardous and that the condition existed, or potentially exists, at the employer’s workplace.

� The employer could have eliminated or materially reduced the alleged hazardous condition or practice by feasible methods.

In June 2015, OSHA released the new Inspection Guidance for Inpatient Healthcare Settings. This guidance document has broadened the criteria for determining the second item listed above, recognizing that a condition or practice was hazardous and existed in the workplace, making it easier to establish this requirement of the general duty clause. Data collected from the Bureau of Labor Statistics continues to show that healthcare worker injuries for patient related handling and workplace violence significantly exceeds private sector rates. As there is no OSHA ergonomics or workplace violence standard, both of these issues can be cited under the general duty clause. The memorandum appears to be directed at hospitals and nursing and residential health care facilities and applies to both scheduled and surprise (for cause) inspections although employee complaints from any sector of healthcare may trigger an inspection. The goal of the new guidance is to address hazards in the form of (1) musculo-skeletal disorders from patient/resident handling; (2) workplace violence; (3) blood borne pathogens; (4) tuberculosis; and (5) slips, trips and falls. Additional targeted areas include occupational exposure to multidrug-resistant organisms, and hazardous drugs and chemicals.

According to the guidance document, OSHA compliance safety and health officers (CSHO) may establish recognition by:

� Actual recognition by the employer. This includes written or oral statements made by the employer or executive or managerial staff members during an inspection; company memos, minutes of safety meetings, operation manuals, or policies and procedures; formal employee complaints or grievances; ineffective corrective action.

� Industry recognition. Employers are responsible for knowing about hazards recognized as part of their industry that could be present in the workplace. Examples include statements and reports by safety experts; industry abatement methods; industry, government, or insurance studies; national consensus standards of organizations such as ANSI and the National Fire Protection Association.

� Common sense. If a hazard is “so obvious that any reasonable person would have recognized it,” it meets the definition of a recognized hazard.

Using these recognition criteria, OSHA says that employers are responsible not only for hazards they outright recognize, but also for hazards they should have recognized. With OSHA’s new initiative, it is imperative for healthcare facilities to review the policies they have as to workplace risks and safety identified In the guidance document as well as

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how employees are educated about those policies. Employers should ensure they have the required or recommend equipment and materials in place to eliminate or minimize hazards. Documentation of proper education of employees, and discipline of employees (and supervisors if appropriate) when policies are violated is key to demonstrate that the rules being taken seriously.

Employee or Employer?

Since OSHA’s concern is the health and safety of employees, it is the employer’s responsibility to provide a safe workplace. When applying OSHA’s standards to dental practices, the status of dentists is important.

Dentists may be employees or employers. Dentists who are unincorporated sole proprietors or partners in a bona fide partnership are employers for OSHA purposes. They can be cited if they employ at least one employee. Such dentist employers may also be cited if they create or control bloodborne pathogens hazards that expose employees at sites where they have staff privileges, such as a hospital.

In general, professional corporations are the employers of their dentist members. In this case, dentists are considered employees and are required to abide by OSHA standards.

Part-time, temporary, and per diem workers are also covered by OSHA regulations. Temporary workers from an employment agency are typically on the payroll of the agency, but the dental facility exercises day-to-day supervision over them and would technically be considered their employer for OSHA purposes.

Before temporary workers are placed in situations that involve potential exposure to bloodborne pathogens or hazardous chemicals, they must receive a facility-specific safety orientation. Independent contractors who provide a service to a dental facility that involves potential exposure to bloodborne pathogens or hazardous chemicals fall under these same guidelines.

Employer Responsibilities under OSHA

Employers covered by OSHA must: � Meet the general duty of providing a workplace free from recognized hazards. � Comply with the OSHA regulations. � Report to OSHA within 8 hours of any accident that results in a fatality or within

24 hours of the hospitalization of one or more employees via telephone at 800-321-6742 or electronically at http://www.osha.gov. Do not leave a voice message. A work- related employee amputation or loss of an eye also requires OHSA notification within 24 hours.

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� Maintain a sharps injury log for all percutaneous injuries from contaminated sharps. � Display the OSHA poster, which advises employees of their legal rights and

responsibilities. � Not discriminate against employees who properly exercise their rights under OSHA. � Post any OSHA citations in the workplace. � Correct any cited violations that have become a final order within the prescribed

time period.

Employers have the right to: � Seek free advice and off-site assistance from OSHA. � Request and receive proper identification from any OSHA compliance officer

requesting access to your facility. � Be advised by the compliance officer of the reason for the inspection. � Request a search warrant for OSHA to enter your premises. � Have an opening and closing conference with the compliance officer to discuss

your rights and his or her findings. � Accompany the compliance officer on the inspection. � Be assured of protection of any trade secrets. � Request an informal hearing and settlement from the OSHA area director. � File a notice of contest to dispute any citations and penalties. � Submit comments to OSHA on any rulemaking procedure.

Overview of OSHA Standards

All industries, including healthcare, are covered by general industry standards, 29 CFR 1910. The following standards are most applicable to the dental setting:

� General Duty clause (OSH Act of 1970; SEC. 5. Duties) � bloodborne pathogens (1910.1030) � compressed gases (1910.101) � electrical safety (1910.303) � emergency action plans (1910.38) � portable fire extinguishers (1910.157) � medical services and first aid (1910.151) � personal protective equipment (1910.132) � respiratory protection (1910.134) � hazard communication (1910.1200) � occupational exposure to hazardous chemicals in laboratories (1910.1450) � ionizing radiation (1910.1096)

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OSHA Inspections

OSHA is authorized by law to conduct workplace inspections to enforce health and safety standards. With the publication of the guidance document for healthcare, new emphasis is being placed on healthcare settings. OSHA has indicated that additional inspectors have been requested to assist in this effort.

Previously the priority of inspections was triggered by:1. Notices of imminent danger.2. Fatalities and catastrophes.3. Serious signed employee complaints.4. Referrals from other government entities, such as CLIA inspectors, alleging

serious hazards. 5. Complaints that are not from current employees, are not signed, or do not allege a

serious hazard.6. Follow-up inspections.7. Programmed general inspections of high-hazard workplaces.

The release of the guidance document increases the probability of programmed general inspections for healthcare settings.

Employee ComplaintsThird in priority are employee safety complaints, which, depending on the nature of the allegation, will lead to a complaint inspection or a complaint investigation. An investi-gation may be conducted by phone, fax, or letter.

When an anonymous employee complaint is filed via phone or letter, OSHA will contact the employer in writing, citing the allegations and requesting a written response within 2 weeks. The employer must respond to OSHA in writing; OSHA then provides a copy of the written response to the original complainant. Take these investigations seriously because an inade-quate response will trigger an on-site inspection.

When an employee files a written, signed complaint, OSHA conducts an on-site inspection without advance notice during working hours. Smaller dental facilities are usually inspected only in response to a complaint from an employee or patient.

If an On-site OSHA Inspection OccursWhen the OSHA CSHO arrives, ask him or her to display a picture identification. Verify that the person is actually an employee of the OSHA division of the U.S. Department of Labor.

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The OSHA safety officer for your facility should: � Ask the purpose for the inspection, its scope, and its anticipated length. � Determine which documents the OSHA CSHO wishes to inspect and under what

regulatory authority. If possible, determine which employees the CSHO intends to interview and what areas of the workplace he or she wants to inspect.

� If the inspection is based on a complaint, ask to see a copy the written complaint. Although OSHA will block out the identity of the complainant, the information will be helpful.

Employers may request a civil warrant be obtained before the inspection proceeds further. This is a 4th Amendment constitutional right, but OSHA’s right to inspect is clear, and OSHA often takes a dim view of an employer’s resistance. In the end, it is your decision whether to require a warrant or voluntarily consent to an inspection. In most cases, requiring the CSHO to obtain a warrant may help you delay an inspection, but it will not help you avoid one.

If the inspector has a warrant, records that are not specified on the warrant do not have to be provided. Be careful about providing OSHA with company documents and don’t volunteer information! You are not required to bear the cost of making copies or allowing use of your copying equipment. Technically, if the inspector wants to copy information by hand, he may do so (29 CFR 1903.3[a]).

During the tour of your facility, the areas to be examined are specified by the inspector. If the OSHA inspector wants to see a specific area, take him or her directly there. The inspector may talk with employees, take notes, make instrument readings, take photos, and/or use a video camera.

OSHA inspectors are legally entitled to review:

� Bloodborne pathogens exposure control plan. � Hazard communication policy/safety data sheets (SDSs) � Posters and logs (e.g., #3165 and sharps injury logs). � Hepatitis B vaccination records. � Annual OSHA training records. � General industry standards records (e.g., fire extinguisher inspections and

evacuation plan). � Workplace violence policies and training records.

Each OSHA CSHO will focus on different aspects of a dental facility, depending on his or her expertise. The inspector may conduct a wall-to-wall inspection or simply focus on one specific matter.

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During the InspectionOnce the OSHA inspector is past the reception area, do not let him or her out of your sight.

Your facility’s OSHA safety officer need not be able to answer every question asked by the OSHA inspector and should not try. The OSHA safety officer must be able to, for example, show the OSHA CSHO the location of the Hazard Communication Plan but does not need to know all the details, such as the antidote for a particular hazardous chemical. The OSHA safety officer should not guess about an answer. Instead, write down the question and later speak with others who know the answer.

What you say can and will be used against you, so think before you speak and don’t say more than necessary. Even an innocent comment may be perceived as an admission of a specific violation. When you answer a question, be precise. Never give estimates if you do not have accurate information. You could be providing OSHA with false information, which is a criminal offense. If at any time you have difficulty responding to a question, call for a time-out and get help. You may then go to a telephone and call for advice from your corporate attorney or trusted, knowledgeable source.

Employees are usually interviewed as part of the inspection. If the employer refuses such interviews, the OSHA CSHO will contact the employee at home. Staff members must answer all questions honestly but should not volunteer information. The inspector may consult with employees as long as it does not interfere with work operations and the employee does not object. He or she may also meet with an employee in private if the employee does not object (29 CFR 1903.7[b]).

What OSHA Inspectors May Ask EmployeesOSHA inspectors will determine whether employees:

� Are familiar with your facility’s safety policies and procedures. � Have complied with these policies and procedures. � Can verbalize actions to take in the event of an emergency. � Are aware of the hazards of the products with which he or she works.

OSHA will not permit an employer representative, such as the OSHA safety officer, to be present during interviews of frontline non-supervisory employees. The employer has a right to have a representative attend the interviews of supervisors.

During the inspection, the CSHO may point out any unsafe working conditions and suggest possible corrective measures. Do not agree that they are violations, or you could be cited and fined. If you are able to correct obvious violations on the spot, do so, but you may still receive a citation and penalty.

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If the compliance officer takes notes or measurements or uses a camera, you should do likewise. Record everything that happens, including the time and date. Get a person to help with notes and someone to help with a camera, if needed. Have the notes typed (keep originals) and add who said what, the inspector’s name, date, times, measuring techniques, equipment used, calibration dates and procedures, and who was present.

The Typical OSHA Inspection1. Opening conference (usually one hour)

� Purpose for the visit is explained. � Records are examined:

– Exposure Ccontrol Pplan and overall safety program are checked to see whether they are complete and being followed.

– Hazard Communication Program is checked for provisions for labeling, SDSs, employee training, and a list of hazardous chemicals.

� Any requested records need to be available for the OSHA inspector within 4 hours.

� Keep a list of all documents requested.2. Tour of the facility

� Ensure the OSHA inspector follows all your facility’s safety protocols. � Employees may be interviewed. � Safety practices are observed. � Photos, videos, instrument readings, or notes may be taken by the inspector.

Take duplicate photos, videos, instrument readings or notes for your records.3. Closing conference

� Employer is advised of the conditions observed in the facility. � Further information may be obtained by the OSHA officer. � Any possible citations that may be issued are revealed, along with your right

to appeal and time limits to do so. � Your questions are answered.

The Closing Conference At the completion of an inspection, the OSHA compliance safety and health officer will conduct a closing conference with the employer and employee representatives. At this time, he or she will:

� Advise the employer of the conditions observed in the facility. � Obtain further information. � Relate any possible citations that may be issued. � Explain how to appeal alleged violations and provide information on time limits. � Answer your questions.

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You should: � Present any evidence of compliance to the OSHA officer to help clarify possible

citations. � Remind the OSHA officer of any violations that were corrected onsite.

After the inspection, the CSHO will inform the employer or the OSHA safety officer of any apparent violations for which a citation may be issued or recommended. The CSHO does not, however, indicate proposed penalties.

At this time, it is important to ask questions and get as much information as possible about the facts of alleged violations and the specific standards (and language of those standards) that the compliance officer believes to have been violated. Find out about the degree of seriousness of the alleged violations, the potential penalties, and the recommended abatement methods. Do not make any time commitments about abatement.

Understand that OSHA could issue a press release. This inspection is public record.

OSHA may allow the employer to correct minor violations on the spot. Ensure that the inspector states—before he or she leaves the premises and with a witness present—that the violations have been abated, with date, time, and place.

Not every potential citation discussed at the closing conference will be included in the final written citation. The inspector’s supervisors will review the proposed citations and decide whether to revise or even drop them. Rarely will citations be added that were not discussed at closing however, inspections at another location under the same management with similar citations may increase the fines and severity of the citations.

To establish a violation under the OSH Act, OSHA must prove all four of the following elements:

1. The standard applies to the working conditions cited.2. The standard’s requirements were not met.3. Employees had access to the hazardous conditions. 4. The employer knew of the hazardous conditions or could have known through the

exercise of reasonable diligence.

The OSH Act’s general duty clause may serve as the basis for a citation when a specific standard does not apply.

Begin to prepare a response to any expected citation immediately after the inspection. The U.S. Department of Labor area director determines penalties after the full inspection report has been reviewed. The area director will notify you in writing, by certified mail, of any citations or penalties that OSHA has placed on your organization.

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Immediately after a citation is issued, request an informal conference with the OSHA area director to obtain additional information and to explore the possibility of a settle-ment. Schedule the conference early in the 15-day response period so there will be enough time to file a notice of contest if the matter is not settled during the conference.

You have 15 working days to pay the penalties or to contest the citation, the penalties, or both. Failure to contest the citation confirms the penalty as final. Contacting legal assis-tance is advised at this point.

File a notice of contest before the expiration of 15 working days if you believe that any part of the inspection or citation process was defective or if you want to contest the amount of time OSHA allows for correcting a hazard. The contested issues will be decided by the Occupational Safety and Health Review Commission. The Review Commission is an independent agency and not part of the U.S. Department of Labor.

OSHA Sanctions

The OSHA area director determines what citations, if any, will be issued and what penalties, if any, will be proposed. Citations and penalties will be sent to the employer by certified mail up to 6 months after the inspection. Citations indicate which regulations have been violated and the time frame allowed for their correction. The employer must post each citation for 3 days, at or near the place a violation occurred or until the violation is corrected, whichever is longer.

If violations are classified as “other than serious” or “serious,” employers are required to use a simple 1-page form to certify to OSHA that the hazardous condition has been abated. For cases involving more serious violations, such as willful, repeat, or high-gravity serious violations, additional verification documents must be submitted along with the abatement certification letter. Examples of acceptable documentation are invoices for equipment purchases, bills from repair services, photographs or video evidence, and reports by safety professionals describing the actions taken for abatement.

For more serious violations that take 90 days or more to abate, OSHA may specify that the employer submit an abatement plan that identifies the violations, the steps to be taken to abate them, an achievement schedule, and the interim measures taken to protect employees from immediate hazards. Abatement plans must be submitted to OSHA within 25 days of the date of the final order in the case.

If a facility fails to take corrective action in response to a cited condition, it is subject to an additional citation for failure to abate. If, after citation, an employer anticipates diffi culty abating the condition in the manner or time frame that OSHA expects, the em ployer should notify OSHA rather than risk reinspection and a failure-to-abate citation.

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OSHA may seek a federal injunction to restrain conditions and practices that could reasonably be expected to immediately cause death or serious physical harm, or before OSHA can force corrective action.

The penalties for violations were restructured under the Bipartisan Budget Act of 2015. Included in the Act is the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. This is the first change to OSHA penalties since 1990. The catch-up cal-culations will be capped at 150% of the current ranges. Other than serious citations will rise from $1,000 to $1,500. $7,000 for each serious violation will rise to over $10,000 and a willful or repeat violation fine can be expected to be $100,000. An employer’s good faith, history of previous violations, and size of business may be reflected in the amount levied. Fines depend on four factors:

� Gravity of the violation � Size of the company � Good faith � History

A willful violation is the most serious, occurring when an employer intentionally and knowingly commits a violation. In this case, OSHA believes that the employer has specific knowledge of a hazardous condition in the workplace and shows an intentional disregard for the requirements of the act or plain indifference to employee safety. Penalties can now reach over $100,000 per violation. If an employee is killed on a job resulting from a willful violation, the employer, if convicted, could face enormous fines and possibly imprisonment. Willful violations account for less than 1% of all violations.

Repeat violations are assessed when a violation has not been corrected. To establish a repeat violation, OSHA must show that the employer was previously cited within the three years following the prior citation. Repeat violations can result in a $100,000 fine, plus $7,000 per day until corrected. Similar citations in different locations under the same management may be considered to be repeat violations under some circumstances.

Other-than-serious citations are given for violations that may cause an accident or illness, but not death or serious physical harm (e.g., a refrigerator not labeled for bio-hazard storage, or exposure to substances at the worksite that might result in contact dermatitis but is not likely to result in serious physical harm). Fines for non-serious citations can go up to $1,500, depending on previous violations and good-faith efforts of the employer.

Serious violations are given when death or serious physical harm could result, and the employer knew or should have known about the hazard (e.g., not providing an appro-priate eyewash in an area where hazardous chemicals are used). Fines can be up to $10,000 for each violation. Fines may be decreased through negotiations or good faith on the part of the employer.

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Whistleblower Protection

In addition to workplace safety and health matters, OSHA enforces whistleblower protection for employees covered under Section 11(c) of the OSH Act and 22 other federal whistleblower statutes. On May 21, 2015, OSHA updated the Whistleblower Investigations Manual. One of the most significant changes is the level of detail regarding punitive damages, including a recognition of an employer’s good faith defense to such damages. Additional substantive guidance is also provided on the topic of damages for emotional distress and the need for the employer to provide whistleblower rights training for the remaining employees.

Employees’ rights under the OSH Act include:

� Filing a complaint with OSHA � Seeking an OSHA inspection � Participating in an OSHA inspection � Participating or testifying in any procedure related to an OSHA inspection

These are employees’ legal rights, and the employer cannot interfere with the exercising of them.

If you receive notice of a complaint from OSHA, do not attempt to identify who made the complaint. Do not try to assign blame to anyone concerning the complaint. If you do not know the identity of the complaining employee, it will be difficult to prove retaliation on the employer’s part.

In order for OSHA to bring a whistleblower suit, four conditions must be met:

1. Protected Activity. The evidence must establish that the complainant engaged in activity protected by the specific statute(s) under which the complaint was filed.

2. Employer Knowledge. The investigation must show that a person involved in the decision to take the adverse action was aware, or suspected, that the complainant engaged in protected activity.

3. Adverse Action. The evidence must demonstrate that the complainant suffered some form of adverse action initiated by the employer. . Notification to OSHA is often required within 30 days of the adverse action.

4. Nexus. A causal link between the protected activity and the adverse action must be established by a preponderance of the evidence.

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Some examples of adverse actions identified in the updated investigation manual include, but are not limited to:

� Discharge � Demotion � Reprimand � Harassment, including slurs, graffiti, offensive or derogatory comments, or other

verbal or physical conduct. � Hostile work environment, including separate adverse actions that occur over a

period of time � Lay-off � Failure to hire or rehire � Failure to promote � Blacklisting � Transfer to different job � Change in duties or responsibilities � Denial of overtime � Making a threat � Intimidation � Denial of benefits � Suspension � Reduction of pay or hours � Constructive discharge, where the employer deliberately created working

conditions that were so difficult or unpleasant that a reasonable person in similar circumstances would have felt compelled to resign

The OSHA investigation must reveal that the employee was penalized for engaging in a protected activity.

Remedies that a court could require from the employer include:

� Reinstatement and front pay � Back pay � Compensatory damages � Punitive damages � Attorney’s fees � Interest on back pay and other damages � Expungement of warnings, reprimands, and derogatory references resulting � Providing the complainant a neutral reference for potential employers

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A whistleblower case was settled in 2015 for over $85,000 against a dental clinic for improper disposal of sharps. The case was brought in 2010 by an employee after the dentist ignored the employee’s requests for proper disposal of contaminated sharps. The employee filed a complaint with OSHA and was fired after an OSHA inspector arrived. The OSHA inspection generated citations for hazard communication and the bloodborne pathogen standard totaling an additional $12,000.

In August 2015, OSHA published the Administrative Dispute Resolution Act. This provides an opportunity for early process resolution for parties to reach a mutual and voluntary outcome for the whistleblower case. For more information on whistleblower protection, see the OSHA web page at http://www.whistleblower.gov.

Students and Volunteers

Many healthcare facilities use the services of students and volunteers, and the question of OSHA coverage often arises for this category of staff member.

Students and volunteers are not usually covered under OSHA as the agency defines the employer-employee relationship to include work for pay or compensation. For an explanation, search for the OSHA letter of interpretation, 03/05/1999 – OSHA coverage does not extend to unpaid students, at http://www.osha.gov.

That is not to say that students and volunteers should not be afforded protection. It’s just that the regulatory oversight is usually not by OSHA. Policies should address hazards that students or volunteers could encounter—especially in area bloodborne pathogens and infection control—and what specific training or education they should receive.

Students from accredited education programs who are coming to gain experience in your facility should provide proof of the necessary vaccinations and bloodborne pathogens, hazard communication and infection prevention raining for their protection and the protection of other staff and patients. Make this proof or other accommodations part of the agreement with the of the education program.

Limiting liability, maintaining the integrity of your infection prevention and hazard communications plan, and exercising common sense are good reasons for your organization to verify or provide training and protection for students and volunteers to the same extent as employees.

UPDATE - HCPro

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