OSHA and Unions and MSD Are Like Peas in a Pod

People ask me how I developed an OSHA practice since most of my peers (competitors?) are labor and employment lawyers without an OSHA practice. The answer is easy: because of the volume of traditional labor work I do – meaning representing companies against labor unions – I had to learn the ins and outs of OSHA. And here is a perfect example of how OSHA and unions go hand in hand.

OSHA recently announced a campaign to raise awareness about the hazards likely to cause musculoskeletal disorders (MSDs) among health care workers. Injuries associated with MSD include sprains, strains, soft tissue and back injuries – mostly from lifting and maneuvering patients. In fact, in 2010 alone there were over 40,000 MSD injuries, so curbing these injuries is a good thing. Sounds innocent enough, right?

Through its campaign, OSHA will provide 2,500 companies, unions, and interested associations in the patient care industry in several states with information about methods to control lifting excessive weight and patient handling such as zero-lift programs that utilize lifting equipment instead of humans to move patients. I imagine this will require several expensive whale-like harnesses for each facility. And based on OSHA’s own Safe Patient Handling guidelines, I’m right.

OSHA’s MSD campaign is part of a larger campaign by OSHA, unions, and health care worker advocates to put increased pressure on inspections in the healthcare industry. The Washington-based pro-union advocacy group Public Citizen released a report “Health Care Workers Unprotected” that criticized OSHA for not inspecting more healthcare establishments and lacking standards addressing healthcare industry hazards. In fact the SEIU and American Nurses Association union are vocal backers of this group.

The report alleges that healthcare workers suffer more injuries and illnesses on the job each year than in any other industry, but that OSHA does comparatively fewer inspections of healthcare facilities. It also argues that OSHA is hesitant to cite employers under its General Duty Clause for violations that do not correspond to a specific safety standard. And, of course, the report urges Congress to significantly increase funding to OSHA.

Unfortunately, whenever OSHA has “campaigns” and provides information to companies about hazards it believes are present, inspections, enforcements, and fines are sure to follow. In a round-about way, OSHA has put you on notice and can now easily cite your company under the General Duty Clause.

This blatant union-backed effort follows the release of OSHA’s letter of interpretation announcing that during an inspection of a non-union worksite, non-union employees can be represented by anyone they choose – including outside union agents. This new policy undoubtedly encourages unions to get more involved in OSHA inspections of non-union companies as a means of gaining access to the employer, snooping around, and having direct contact with workers during working hours.

If you are a non-union employer in the healthcare industry, it is likely that at least one of your employees have been contacted by a union business agent. Perhaps the time isn’t right for the employees to try to form a union, but that doesn’t deter the business agent. He will gladly wait on the sideline acting as a conduit between workers and government inspections. For example, if an employee is injured, he will call OSHA; if a minority is terminated, he will call the EEOC; if someone complains about a term or condition of employment, he will call the NLRB – even if the employee doesn’t want him to call.  And with respect to OSHA, specifically, that phone call to OSHA may be just the opening he needs to get inside the workplace and recruit union supporters.

For healthcare companies with unions, MSD will be a major topic the next time you negotiate a collective bargaining agreement. Unions will seek to require companies to purchase the expensive equipment recommended by OSHA without regard to cost or feasibility of use.  And, of course, unions have ready-made anti-company propaganda alleging how dangerous the workplace is or how much the company doesn’t care about employee safety, should employers not agree to these demands.

OSHA and Unions have the same goal – to be a more relevant presence inside all companies. Neither are going away soon or staying quiet any longer. More information about how unions and OSHA work closely together can be found on my website.

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