OSHA UPDATE /24/2013 DISCUSSION: NURSING AND RESIDENTIAL CARE FACILITIES (NEP) SUMMER National Emphasis Program (Long Term Care-NEP)

Transcription

1 OSHA UPDATE 2013 SUMMER 2013 Alabama Nursing Home Association DISCUSSION: National Emphasis Program (Long Term Care-NEP) Employee E l Complaints: Whistleblower Act Globally Harmonized System (GHS) NURSING AND RESIDENTIAL CARE FACILITIES (NEP) DIRECTIVE NUMBER: CPL EFFECTIVE DATE: April 5,

2 NURSING AND RESIDENTIAL CARE Purpose: FACILITIES This Instruction implements a National Emphasis Program (NEP) for programmed inspections of nursing and residential care facilities NAICS , , and (formerly SIC codes 8051-Skilled Nursing Care Facilities, 8052-Intermediate Care Facilities, and 8059-Nursing and Residential Care Facilities, Not Elsewhere Classified)]. NURSING AND RESIDENTIAL CARE FACILITIES The specific hazards being addressed include: 1. Ergonomic Stressors in Patient Lifting/Handling 2. Bloodborne Pathogens/ECP 3. Workplace Violence 4. Slips, Trips and Falls NURSING AND RESIDENTIAL CARE FACILITIES Continued Targeting will focus on establishments in NAICS codes , , and , with a DART rate at or above

3 NURSING AND RESIDENTIAL Expiration. CARE FACILITIES This Instruction will expire three (3) years from the date of issuance of April 5, INCIDENCE RATES? DART Days Away, Restricted, or Transferred DAFWII Days Away from Work Injury and Illness OSHA COMPLAINTS: Complaint Filing Options 1. Online 2. Download and Fax/Mail 3. Telephone To File a Discrimination Complaint You have been punished or discriminated against for refusing to work when faced with an imminent danger of death or serious injury, and there is insufficient time for OSHA to inspect, you must file a complaint with OSHA within 30 days of the alleged reprisal. 3

4 OSHA COMPLAINTS: Who Can Complain? 1. An authorized representative of the employee bargaining unit, such as a certified or recognized labor organization. 2. An attorney acting for an employee. 3. Any other person acting in a bona fide representative capacity, including, but not limited to, members of the clergy, social workers, spouses and other family members, and government officials or nonprofit groups and organizations acting upon specific complaints and injuries from individuals who are employees. In addition, anyone who knows about a workplace safety or health hazard may report unsafe conditions to OSHA, and OSHA will investigate the concerns reported. OSHA COMPLAINTS: What Information Must the Employee Provide? Employees or their representatives must provide enough information for OSHA to determine that a hazard probably exists. Workers do not have to know whether a specific OSHA standard has been violated in order to file a complaint. OSHA COMPLAINTS: Information Examples: 1. How many employees work at the site and how many are exposed to the hazard? 2. How and when are workers exposed? 3. What work is performed in the unsafe or unhealthful area? 4. What type of equipment is used? Is it in good condition? 5. What materials and/or chemicals are used? 6. Have employees been informed or trained regarding hazardous conditions? 7. What process and/or operation is involved? 8. What kinds of work are done nearby? 9. How often and for how long do employees work at the task that leads to their exposure? 10. How long (to your knowledge) has the condition existed? 11. Have any attempts been made to correct the problem? 12. On what shifts does the hazard exist? 13. Has anyone been injured or made ill as a result of this problem? 14. Have there been any "near-miss" incidents? 4

5 WHISTLEBLOWER PROTECTION PROGRAM: OSHA's Whistleblower Protection Program enforces the whistleblower provisions of twenty (22) whistleblower statutes Rights afforded by these whistleblower acts include, but are not limited to, worker participation in safety and health activities, reporting a work related injury, illness or fatality, or reporting a violation of the statutes. PROGRAM Protection from discrimination means that an employer cannot retaliate by taking "adverse action" against workers, such as: 1. Firing or laying off 2. Blacklisting 3. Demoting 4. Denying overtime or promotion 5. Disciplining 6. Denial of benefits 7. Failure to hire or rehire 8. Intimidation 9. Making threats 10. Reassignment affecting prospects for promotion 11. Reducing pay or hours PROGRAM The OSH Act prohibits employers from discriminating against their employees for exercising their rights under the OSH Act These rights include filing an OSHA complaint, participating p in an inspection or talking to an inspector, seeking access to employer exposure and injury records, and raising a safety or health complaint with the employer If workers have been retaliated or discriminated against for exercising their rights, they must file a complaint with OSHA within 30 days of the alleged adverse action. 5

6 PROGRAM Since passage of the OSH Act in 1970, Congress has expanded OSHA's whistleblower authority to protect workers from discrimination under twenty-two federal laws Each law provides whistleblower or antiretaliation provisions that generally provide that employers may not discharge or retaliate against an employee because the employee has filed a complaint or otherwise exercised any rights provided to employees PROGRAM-STATUTES COVERED 3 Primary Covered Areas: 1. Environmental and Nuclear Safety Laws 2. Transportation Industry Laws 3. Consumer and Investor Protection Laws PROGRAM-STATUTES COVERED Section 11(c) of the Occupational Safety & Health Act (OSHA). [29 U.S.C. 660(c)] Section 11(c) provides protection for employees who exercise a variety of rights guaranteed under the Act, such as filing a safety and health complaint with OSHA, participating in an inspection, etc. 29 CFR

7 PROGRAM-STATUTES COVERED Asbestos Hazard Emergency Response Act (AHERA). Clean Air Act (CAA). [42 U.S.C. 7622] Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). [42 U.S.C. 9610] a.k.a. "Superfund, Energy Reorganization Act (ERA). [42 U.S.C. 5851] Federal Water Pollution Control Act (FWPCA). [33 U.S.C. 1367] a.k.a. "Clean Water Act," PROGRAM-STATUTES COVERED Safe Drinking Water Act (SDWA.) [42 U. S. C. 300j-9(i)] Solid Waste Disposal Act (SWDA). [42 U.S.C. 6971] Toxic Substances Control Act (TSCA). [15 U.S.C. 2622] 8 Covered Laws for Transportation and Industry (omitted) PROGRAM-STATUTES COVERED: Affordable Care Act. 29 U.S.C. 218C (ACA) Protects employees who report violations of any provision of title I of the ACA, including but not limited to discrimination based on an individual's receipt of health insurance subsidies, the denial of coverage based on a preexisting condition, or an insurer's failure to rebate a portion of an excess premium. Consumer Financial Protection Act (CFPA). [12 U.S.C. 5567]. Violations of any provision of the Title X of the Dodd- Frank Wall Street Reform and Consumer Protection Act 7

8 PROGRAM-STATUTES COVERED: Sarbanes-Oxley Act (SOX). [18 U.S.C. 1514A] Consumer Product Safety Improvement Act (CPSIA). [15 U.S.C. 2087] FDA Food Safety Modernization Act (FSMA) [21 U.S.C. 399d]. PROGRAM-TO FILE A COMPLAINT: ORALLY A call to the local OSHA Regional or Area Office where OSHA staff will discuss the complaint with the employee and respond to any questions they may have. WRITTEN The employee may also send a letter describing a complaint to the local OSHA Regional or Area Office. In most cases you must include your name, address and telephone number so they can contact for follow up PROGRAM-PRESS RELEASES July 18 [Region 1 News Release] /18/ US Department of Labor's OSHA orders Marlborough, Mass., trucking company and owner to reinstate, pay more than $131,000 to driver July 18 [Region 5 News Release] /18/ US Labor Department's OSHA orders Coit Services of Ohio to pay $161,228 to technician fired after reporting unsafe lead abatement practices 8

9 PROGRAM-SUMMARY/LINKS CPL OSHA Whistleblower Investigations Manual (Published 9/20/2011) CPL Section 11(c), AHREA, and ISCA Appeals Program (Published 9/12/2012) DIR (CPL 02) Whistleblower Alternative Dispute Resolution (ADR) Program (Published 10/1/2012) HAZARD COMMUNICATION STANDARD: LABELS AND PICTOGRAMS-GLOBALLY HARMONIZED SYSTEM OSHA has adopted new hazardous chemical labeling requirements as a part of its recent revision of the Hazard Communication Standard, 29 CFR (HCS) Alignment with the United Nations Globally Harmonized System of Classification and Labeling of Chemicals (GHS) The revised HCS changes the existing Hazard Communication Standard (HCS/HazCom 1994) from a performance-based standard to one that has more structured requirements for the labeling of chemicals. GLOBALLY HARMONIZED SYSTEM What is the Globally Harmonized System (GHS)? The Globally Harmonized System of Classification and Labeling of Chemicals (GHS) provides a single set of harmonized criteria for classifying chemicals according to their health and physical hazards and specifies hazard communication elements for labeling and safety data sheets. 9

10 GLOBALLY HARMONIZED SYSTEM Why Modify Hazard Communication Standard? 1. Aligning the HCS with the GHS will enhance worker comprehension of hazards, especially for low and limited-literacy workers, 2. Reduce confusion in the workplace, 3. Facilitate safety training, and result in safer handling and use of chemicals. The harmonized format of the safety data sheets will enable workers to access the information more efficiently. GLOBALLY HARMONIZED SYSTEM Changes to Anticipate 1. The revised Hazard Communication Standard will now provide specific criteria for health and physical hazards to help chemical manufacturers and importers classify chemical hazards 2. Chemical manufacturers and importers will be required to provide new labels that include a harmonized signal word, pictogram, and hazard statement based on the hazard classification 3. Safety data sheets (SDS) will have a specified 16-section format. HAZARD COMMUNICATION STANDARD: LABELS AND PICTOGRAMS Requires that information about chemical hazards be conveyed on labels using quick visual notations to alert the user, providing immediate recognition of the hazards All hazardous chemicals shipped after June 1, 2015, must be labeled with specified elements including pictograms, signal words and hazard and precautionary statements 10

11 HAZARD COMMUNICATION STANDARD: LABELS AND PICTOGRAMS What Has Not Changed For Employers? The basic requirements for employers are not changed by the new HCS. These include: 1. Ensuring that labels on incoming containers of hazardous chemicals are not removed or defaced 2. Maintaining safety data sheets that are received with incoming shipments of hazardous chemicals, and ensuring that they are readily accessible during each work shift to employees when they are in their work areas 3. Ensuring that employees are provided with information and training HAZARD COMMUNICATION STANDARD: LABELS AND PICTOGRAMS Labels for a hazardous chemical must contain: 1. Name, Address and Telephone Number 2. Product Identifier 3. Signal Word 4. Hazard Statement(s) 5. Precautionary Statement(s) 6. Pictogram(s) HAZARD COMMUNICATION STANDARD: LABELS AND PICTOGRAMS What Employers Need to Do and When (Effective Dates)? 1. Employers must train workers on the new label elements and SDS format by December 1, Chemical manufacturers, importers, distributors, and employers must comply with all modified provisions of the final rule by June 1, By June 1, 2016, employers must update alternative workplace labeling and hazard communication programs as necessary, and provide additional worker training for new identified physical and health hazards 11

12 GHS/HAZ-COM TRAINING Employers must train employees in at least the following areas by December 1, 2013: 1. Methods and observations that may be used to detect the presence or release of a hazardous chemical in the work 2. The physical, health hazards of the chemicals in the work area 3. The measures employees can take to protect themselves from these hazards 4. The details of the hazard communication program developed by the employer 5. The SDS, including the order of information and how employees can obtain and use the appropriate hazard HAZARD COMMUNICATION STANDARD: LABELS AND PICTOGRAMS-GLOBALLY HARMONIZED SYSTEM SUMMARY Protection under OSHA's Hazard Communication Standard (HCS) includes all workers exposed to hazardous chemicals in all industrial sectors. This standard is based on a simple concept - that employees have both a need and a right to know the hazards and the identities of the chemicals they are exposed to when working. For employers, the focus will be on training employees on the new hazard warning label elements and implementing the new SDS format by December 1, Michael Arther, NHA MCA Consulting, LLC michael@mcaconsult.netnet