By Brent I. ClarkJames L. Curtis, Ilana R. MoradyPatrick D. JoyceAdam R. Young, and Daniel Birnbaum

Seyfarth Synopsis:  Here is today’s update from the presentations and room discussions at the ABA Occupational Safety and Health Law Committee’s 2018 Midwinter Meeting.

We continue to attend the ABA Occupational Safety and Health Law Meeting this week in Santa Monica, California.

A hot topic, discussed at today’s meeting, is sexual harassment in the workplace.  Panelists are discussing whether sexual harassment could constitute a serious workplace safety and health issue.  Studies show that pervasive harassment may manifest in physical symptoms in victimized employees.  The question becomes, when does sexual harassment evolve into workplace violence that presents OSHA liability?  There are currently no specific OSHA standards that address workplace violence or sexual harassment.  However, under the General Duty Clause of the Occupational Safety and Health Act, employers are required to provide their employees with a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious harm.”  As such, sexual harassment is on OSHA’s radar, and as more employees step forward, it is anticipated that more inspections will be opened from complaints.

The panel discussed specific industries, including healthcare, social services, hospitality, late night retail, construction, agriculture, and food processing, as those where sexual harassment as a workplace violence issue are statistically more likely.  OSHA will likely focus on these industries in evaluating future sexual harassment inspections.  As an example, the panel referenced a case in Region 3, where an inspection was opened when a pediatric services employee was sexually assaulted by a client’s father after complaints were made to the employer by other employees about the alleged abuser.  Companies should evaluate complaints and determine if sexual harassment in the workplace is foreseeable or preventable.

The panel also talked about efforts by local cities and industries that have made proactive steps to protect employees from sexual harassment.  As an example, Seattle, New York, and Chicago have all taken steps to provide hotel workers with “panic buttons” to help prevent attacks by hotel guests.  It is anticipated that these regulations will spread across the country, and span new industries as well.  Employers should stay aware of the newest regulations and industry practices to reduce the risk that employees will be harmed or that an OSHA inspection will be opened.

More to come from the conference tomorrow.…

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of Seyfarth’s OSHA Compliance, Enforcement & Litigation Team.

By James L. CurtisDaniel Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: NIOSH reiterated last week that healthcare workers are exposed to a wide range of hazards on the job and healthcare employers may not be following best practices to protect against these hazards.

Healthcare is the fastest-growing sector of the U.S. economy, employing over 18 million workers, 80% of which are women.  These healthcare workers face numerous hazards on the job, including sharps injuries, exposures to chemicals and hazardous drugs, musculoskeletal disorders (MSDs), latex allergy, violence, and stress.

Significantly, there are more cases of healthcare workers suffering nonfatal occupational injury and illnesses than any other industry sector.  In a recent healthcare study, NIOSH found that as to administering aerosolized pentamidine to patients “22% of respondents did not always wear protective gloves, 69% did not always wear protective gowns, and 49% did not always wear respiratory protection….”  NIOSH concluded that there was “a belief that employers do not fully appreciate the potential adverse health effects associated with exposure to these drugs and therefore do not prioritize adherence.”

As to high-level disinfectants, the survey findings showed that best practices to minimize exposure have not been universally implemented.  NIOSH’s survey found that “17% of respondents said they never received training and, of those who received training, 42% said that it was more than 12 months ago.  19% of respondents said that employer safe handling procedures were unavailable.”  “44% of respondents did not always wear a protective gown and 9% did not always wear protective gloves.”

Critically, NIOSH concluded that employers and employees did not always follow best practices.

For healthcare employers this conclusion should be a red-flag as to the overall quality of their safety and health policies.  Healthcare employers should consult with safety professionals who are well versed in the areas where the employers may be out of touch with best practices.  Such consultations can enhance employee safety and help avoid liabilities associated with OSHA violations.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team or the Workplace Counseling & Solutions Team.