While OSHA eventually will make this list public, establishments on the list will have no way of determining whether they actually will be inspected. OSHA will assign each of the 700 facilities a random number, and inspections will be scheduled in the order called for by the random number assigned. Each OSHA area office will inspect at least three facilities in its geographic jurisdiction during the three-year term of the NEP.
Facilities in states that have their own workplace safety program will not be exempt from the NEP, as OSHA will require those states to participate in the federal program.
The NEP does provide new owners with a possible exemption from the program. According to the NEP, if an establishment selected for inspection has changed ownership since December 31, 2009, and has been under new ownership for more than six months, OSHA will recalculate that establishment’s DART for the period of new ownership. If the recalculated DART is below 10, OSHA will not proceed with the inspection.
WHAT NEP MEANS TO YOU
Employers in this industry must take proactive steps in the face of the NEP and also must consider the underlying factors that are likely to become more pronounced in coming years. As the Bureau of Labor Statistics’ data demonstrates, musculoskeletal injuries related to resident handling are the main source of all injuries to nursing home employees. In fact, OSHA noted that 48 percent of all reported injuries in nursing homes were due to overexertion.
Without proper resident handling procedures and policies, this particular injury is only likely to worsen as Americans become increasingly heavy. Currently, approximately 34 percent of adult Americans are considered obese, which is more than double the percentage of adult Americans who were considered obese in 1980. Such trends will make resident handling a more physically demanding duty for LTC employees. And because resident handling is such a critical job duty for these employees, it is imperative that employers plan accordingly.
While employers will not have advance notice of any inspection, they should conduct an internal audit of the DART rates at their facility. If the DART rate is 10 or more, employers should assume that their facility will be inspected. Employers can minimize or mitigate resident handling injuries by also conducting an audit of existing safety training programs, resident handling policies and procedures and related record-keeping practices. A modest investment of time and resources now will pay dividends if an OSHA inspector comes calling in the future.
Edward N. Boehm Jr. is an associate in the Atlanta office at Fisher & Phillips LLP. Boehm’s practice focuses on the defense of employment-related lawsuits in federal and state courts, including claims arising under Title VII, the American with Disabilities Act, the Fair Labor Standards Act and the National Labor Relations Act. He can be reached at firstname.lastname@example.org.
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