OSHRC RULING ON BBP STANDARD

Transcription

1 OSHRC RULING ON BBP STANDARD CITATION CONTEST 1001 G Street NW, Ste. 500W, Washington, D.C. (202) Presented by: Lawrence Halprin Partner halprin@khlaw.com Manesh Rath Partner rath@khlaw.com

2 Please Don t Forget to Dial-In: Conferencing Number: (800) Access Code: (View the slides via webinar, and the sound via phone, above) An audio recording and slide deck will be provided post-webinar on

3 LAWRENCE P. HALPRIN Lawrence Halprin is a partner in Keller and Heckman s workplace safety and health, chemical regulation and litigation practice groups. He is nationally recognized for his work in workplace safety and chemical regulation. His workplace safety and health practice covers all aspects of legal advocacy, including: representing clients in OSHA and MSHA investigations and enforcement actions; providing compliance counseling and training; conducting incident investigations, compliance audits and program reviews; participation in federal (OSHA, MSHA and NIOSH) and state rulemakings and stakeholders processes; bringing and intervening in pre-enforcement challenges to final agency rules; advising on legislative reform and oversight; and participation in the development of national consensus standards under the ANSI process, and TLVs under the ACGIH process. Lawrence Halprin Partner halprin@khlaw.com Mr. Halprin's engineering and financial background and extensive knowledge of OSHA rulemakings have greatly enhanced his ability to: provide compliance counseling and represent clients in enforcement actions; and evaluate and critique rulemaking proposals and suggest alternative approaches. On behalf of one or more clients, Mr. Halprin has participated in almost every major OSHA rulemaking over the past 25 years as well as numerous Cal-OSHA rulemakings. 3

4 MANESH K. RATH Manesh Rath is a partner in Keller and Heckman s litigation and OSHA practice groups. He has been the lead amicus counsel on several cases before the U.S. Supreme Court including Staub v. Proctor Hospital and Vance v. Ball State University. Mr. Rath is a co-author of three books in the fields of wage/hour law, labor and employment law, and OSHA law. On developing legal issues, he has been quoted or interviewed in The Wall Street Journal, Bloomberg, Smart Money magazine, Entrepreneur magazine, on "PBS's Nightly Business Report," WAVY-TV and C-SPAN. He was listed in Smart CEO Magazine's Readers' Choice List of Legal Elite. Mr. Rath has extensive experience representing industry in OSHA rulemakings. He has successfully represented employers including some of the largest in the country in OSHA citations and investigations before federal OSHA in regions across the country and in state plan states. Manesh Rath Partner rath@khlaw.com Mr. Rath currently serves on the Board of Advisors for the National Federation of Independent Business (NFIB) Small Business Legal Center. He served on the Society For Human Resources (SHRM) Special Expertise Panel for Safety and Health law for several years. He is the editor and co-author of the OSHA chapter of the Employment and Labor Law Audit (9 th and 10 th Editions) and a co-author of the book Occupational Safety and Health Law Handbook (2001). 4

5 TOPICS TO BE DISCUSSED 1. Facts in that case; 2. A basic overview of the blood borne pathogens standard and when it applies; 3. Defenses raised in that case; and 4. What employers can do to prepare for OSHA inspections involving the BBP standard. 5

6 DOL V. UNIFIRST CORP. OSHA inspection: July 22, 2013 Trial before OSHRC: February 5, 2014 OSHRC ALJ decision: April 10,

7 FACTS OF THE CASE UniFirst uniform supply co. and commercial laundry services, market in health care Birmingham, AL 12 route sales representatives Route sales deliver clean uniforms (in this case scrubs) and pick up soiled uniforms for laundering Contract with The Surgery Center (TSC), Oxford, AL TSC performs same-day elective procedures, e.g. tonsil removal, ear intubation 7

8 FACTS OF THE CASE (CONT D) All TSC employees wear scrubs Surgical gowns worn over scrubs during surgery and handled separately After surgery, gowns disposed of in one container and scrubs in a separate container. UniFirst does not handle surgical gowns TSC was losing scrubs through theft with prior laundry vendor and required new procedure UniFirst offered to lease uniforms and attach barcodes on inside of garments UniFirst would scan the garments at pick up and delivery 8

9 FACTS OF THE CASE (CONT D) Sales rep. Eric Foshee worked at Unifirst for 7 ½ years Then assigned to TSC route Foshee first placed clean scrubs in designated lockers Then donned PPE safety glasses, nitrile gloves (two pairs), barrier coat Open dirty bin locker, remove each garment, scan barcode, place garment into a biohazard bag Then load all bags into truck and return to Unifirst laundry facility 9

10 FACTS OF THE CASE (CONT D) Foshee complained repeatedly to UniFirst management about the scanning requirements at TSC OSHA received a complaint about the working conditions for UniFirst s route sales reps at TSC OSHA visited TSC, conducted walk-around inspection Saw 1 or 2 garments in the bin, did not examine them Issued a citation: 1. Contaminated laundry unnecessarily handled or handled with excessive agitation. 29 CFR (d)(4)(iv)(A) Contaminated laundry shall be handled as little as possible with a minimum of agitation. 10

11 OSHA S BURDEN OF PROOF OSHA must prove: 1. The cited standard applies to the condition. 2. The employer failed to comply with the standard. 3. Employees had access to the violative condition. 4. The employer knew or could have known of the violative condition. 11

12 FINDINGS AND OPINION UniFirst: OSHA failed to establish the first three elements 1. Applicability of Standard: Contaminated laundry = laundry which has been soiled with blood Contaminated = the reasonably anticipated presence of blood on an item or surface. ALJ: OSHA must establish that the scrubs Foshee scanned were actually soiled with blood. 12

13 FINDINGS AND OPINION (CONT D) CSHO testified She did not pick up any soiled scrubs She did not see any scrubs that had apparent blood She hadn t made a visual assessment She believed that blood is presumed The substitute route sales rep never saw any blood Surgical gowns go over scrubs and go down past knee and are removed and disposed of separately On one occasion, a nurse identified a scrub and said it had a blood spatter ALJ: one instance is not enough to establish coverage under BBP standard 13

14 FINDINGS AND OPINION (CONT D) Preamble to BBP anticipates blood may be present on outer protective clothing, but not on clothes underneath ALJ: OSHA failed to establish occupational exposure 2. Compliance w/ standard CSHO testified that any handling of the scrubs by the sales rep constituted a violation CSHO thought UniFirst rep should just draw the bag closed and remove it 14

15 ALJ OPINION: No exposure to contaminated laundry But even if there was, UniFirst was in compliance because: BBP is a performance standard Compliance with a performance standard is determined by whether the employer acted as a reasonably prudent employer would UniFirst s use of measures appropriate for contaminated laundry -- eye glasses, barrier coat, double gloves -- reflected reasonable prudence The CSHO s observations about best practices must be weighed against the need to minimize loss of scrubs through theft 15

16 WHAT EMPLOYERS SHOULD DO Recognize that this decision is unique to laundry, when the laundry is an undergarment not expected to be contaminated with blood Careful study of the scope of applicability. Develop safety practices differently for performance standards and specification standards. Where possible, develop pre-trial evidence to establish employer s operations were outside scope of standard. Develop pretrial evidence of lack of employee exposure. If performance standard, then develop evidence of reasonable or reasonably prudent employer. Establish operationally necessary activities The agency s intent can be evidenced in a number of publications including preamble (contemporaneous), enforcement guidance, existing agency interpretations. 16

17 Next OSHA 30/30 Please join us at 1:00 PM Eastern U.S. Wednesday, August 20, The Employment Law Aftermath Live Lunch Meeting Tuesday, October 7, 2014 at 12:00 noon to 2:00 pm Eastern U.S. Web Encore Thursday, October 9, 2014 at 12:00 noon Eastern U.S. Web Encore: 17

18 Thank you! Please take a moment to fill out the survey on your screen. Keller and Heckman LLP 1001 G Street NW Suite 500 West Washington, DC (202) rath@khlaw.com Larry Halprin halprin@khlaw.com Manesh Rath rath@khlaw.com