Safety in the workplace: OSHA rules apply in office setting

October 1, 2009

Because of the late hour, the physician does not clean up his medical waste and needles, knowing that his nurse will do a perfectly appropriate job in the morning.

One night, after sending his staff home, Dr. Johnson chooses to remove a cyst from an old college buddy he has not seen in years. Because of the late hour, the physician does not clean up his medical waste and needles, knowing that his nurse will do a perfectly appropriate job in the morning.

In the morning, the nurse - not knowing what transpired the night before - assumes that the materials should be simply thrown in a waste receptacle. She lifts the materials, is stuck with a needle and, ultimately, is found to have a hepatitis B infection.

Dr. Johnson contends that had the nurse only picked up the drape, she would have known to be careful with the "sharps" and would have avoided becoming infected.

Who is correct?

OSHA

In 1970, Congress created the Occupational Health and Safety Administration (OSHA) with the goal of securing safe working conditions for all workers.

OSHA covers every workplace that employs one or more employees and engages in a business that affects interstate commerce in any way. Interstate commerce encompasses anything that crosses state lines, whether that be a person, goods or services. As a result, physician offices are affected.

In addition, OSHA specifically includes employers such as physicians.

OSHA requires that a covered employer comply with specific occupational safety and health standards applicable to the workplace. Employers have a duty to provide a safe working environment.

General duty

Under OSHA, employers have two duties. Where OSHA has delineated specific standards, the specific duty clause mandates that employers "shall comply with occupational safety and health standards . . . which are applicable to his own actions and conduct."

In the absence of a specific OSHA standard for a particular working environment, employers must adhere to the general duty clause to furnish a workplace "free from recognized hazards that are causing or are likely to cause death or serious physical harm."

The general duty clause requires that an employer maintain a place of employment free from hazards that cause, or are likely to cause, injury or serious physical harm, even if there is no specific OSHA standard addressing the particular circumstances.

As such, the general duty clause is a catchall standard encompassing all potential hazards that have not been specifically addressed in the OSHA standards.

Investigation

Once a claim has been filed, an on-site investigation by an OSHA inspector will occur. The area OSHA director may then notify the employer via certified mail if a penalty is to be imposed.

The employer has 15 days to respond to the charges, and if he fails to do so during that time, the citation is considered to be a final order and not subject to any review by any court or agency.

Penalties

Penalties are in line with the severity of the act. Willful violations of the act that cause an employee's death incur a criminal fine of not more than $10,000 or imprisonment of up to six months, or both.

Willful or repeated violations may incur civil penalties of not more than $70,000 for each violation, but not less than $5,000 for each willful violation, whether or not malice was an issue. Intent alone is sufficient to justify this penalty.

A second violation results in a fine of $20,000 or imprisonment of up to one year, or both.

Serious violations - as well as nonserious ones - may incur civil penalties up to $7,000 for each violation.

Employers who do not correct violations may be fined up to $7,000 for each day that the violation - or failure to correct it - persists.