The Occupational Safety and Health Administration (OSHA), administered by the U.S. Department of Labor, sets the federal standards for workplace safety. Beth-Ann Jackson, associate attorney at Thorpe, Reed & Armstrong in Pittsburgh, says that workplace hazards are generally more numerous within medical settings than they are in other office settings, so physician employers need to pay special attention to OSHA regulations.
“Generally OSHA requires employers to maintain a safe workplace for the employees and to eliminate all known risks and hazards,” says Jackson. “OSHA also requires all employers to keep a log of all injuries in the workplace, and it can also require employers to disclose known hazards to employees so they are aware of some of the hazards they are working around.”
Common injuries in physician practices include coming into contact with patients’ bodily fluids via exposure to sharps, disposing contaminated waste, and even handling office laundry. OSHA-required responses to accidents that can result from these types of risks have been in place since the early 1990s, says Jackson, who says that most physicians have by now become quite familiar with the protocols the Department of Labor requires to protect employees in these common scenarios.
But OSHA may also dictate other aspects of employee activity in the office that may not be as obvious. For example, says Jackson, physician employers need to be “very careful” regarding where they allow their employees to eat lunch. And then there’s the question of whether or not you should allow employees to wear sandals to work, Jackson adds, noting that there are “over two hundred” OSHA requirements that apply to employee use of protective equipment when working within patient care environments.
Bruce Armon, a partner in the Philadelphia-based firm, Saul Ewing LLP, notes that due to their training, nurses are very likely to be knowledgeable about what precautions they should take in the office. Other staff, who may have less clinical knowledge, will be more likely to adhere to the protective protocols that you require they follow if they understand the reasoning behind them. “Ensure everyone knows the reason everything needs to be clean, the reason why waste should be labeled appropriately, the reason why dirty linens need to go in a specific place,” says Armon. “What we’re doing in terms of preventing infection requires job-specific appropriate reminders.”
Physician employers must make an employee injury log available to OSHA should they conduct a safety audit of their workplace. And as of February 2008, OSHA began requiring employers to post a summary of the total number of job-related injuries and illnesses that occurred in their workplace during 2007 on a specific OSHA form downloadable from the Internet.
According to OSHA’s Web site, “The [posted] summary must include the total number of job-related injuries and illnesses that occurred in 2007 and were logged on the OSHA Form 300. To assist in calculating incidence rates, information about the annual average number of employees and total hours worked during the calendar year is also required. … The form must be signed and certified by a company executive. Form 300A should be displayed in a common area where notices to employees are usually posted.”
Of course, there are some exemptions; employers with 10 or fewer employees are exempt from this law. And state laws governing workplace safety can also apply.
Jackson admits that wading through OSHA’s numerous and dynamic regulations can be overwhelming. “The standards can be pretty technical, but they are available on the Internet, on OSHA’s Web site,” she says. “The other way [to be in full compliance] is to consult with an attorney and develop safety practices for the practice. … OSHA’s Web site can be a bit of information overload.”
Preventing discrimination
Employees can allege workplace discrimination on a number of grounds, including gender, race, religion, disability, and age. Individual states may also have legislated against discrimination on other grounds, such as sexual orientation. While many discrimination claims are legitimate and rightfully prosecuted, employers often do not know all the facts and must protect themselves against unfounded allegations. Expert lawyers agree that there are a number of ways they can do so.
In fact, federal law requires employees to have remediation procedures in place and in writing should an employee allege discrimination or harassment. “They should … clearly identify a person to whom harassment can be reported,” says Woefel. “They should also provide a bypass mechanism in the case that, say it’s your supervisor that you’re supposed to report to, and he’s the one who is harassing you, you need a bypass mechanism. If the employee doesn’t avail himself of that procedure, then there’s an affirmative defense” should legal action ensue.
If the employer cannot work out the problem via its own remediation procedures, employees may contact the Equal Employment Opportunity Commission (EEOC), or depending upon where they are located, an equivalent state agency. These government entities may investigate and find cause for a lawsuit. But most cases don’t make it that far. “The EEOC doesn’t want to respond to every complaint,” says Woefel. “They want employers to police themselves and address problems as they arise. … The EEOC is meant to be a fail-safe when that system breaks down.”
Maureen Binetti, chair of the employment law department in the law firm of Wilentz, Goldman & Spitzer in Woodbridge, N.J., says of federal discrimination law: “It basically says, ‘Now we want you to stop this stuff before it happens. And if you can’t, then at least you have to immediately look into it and remediate it after it happens.’” That’s why training is so important, says Binetti. If employers train their employees about sexual harassment and other areas of protected activity in advance, they also give themselves much more protection against liability if there is a complaint down the road.
Of course, perceptions of discrimination and harassment can vary widely on an individual basis. What may be perceived as a casual friendly gesture by one person could be perceived as inappropriate by another. Michael Schaff, chair of the corporate and healthcare teams at Wilentz, Goldman & Spitzer, says not explicitly spelling out for your employees what may be perceived as harassment can have consequences. “If practices don’t do the training, they don’t understand the risk of putting an arm around a coworker when you’re talking to them,” he says. “If it’s someone of the opposite sex, they may claim that it was inappropriate.”
