The Occupational Safety and Health Administration (OSHA) was busy this past summer, announcing a host of new enforcement priorities. Here we recap two: (1) combatting employee illness and injury at inpatient-care facilities; and (2) ensuring proper restroom access for transgender workers at all employer facilities.
Inpatient Care Employers Face an OSHA Inspection Ramp-Up
OSHA’s announced initiative regarding inpatient care facilities – e.g., hospitals and residential care/nursing homes – involves a plan by the Agency to:
- Expand the resources OSHA directs for inspections at these sites, and
- Direct inspectors to focus on five, recently identified “key hazard” areas: (1) musculoskeletal disorders related to patient and resident handling; (2) bloodborn pathogens; (3) workplace violence; (4) tuberculosis; and (5) slips, trips and falls.
An OSHA Directive to Regional Administrators and State Designees, which accompanied the press release announcing the Agency’s health care inpatient-facility initiative, provides guidance to OSHA investigators on how to detect each of the five, newly identified hazards. According to OSHA, these hazards are responsible for the bulk of all work-related employee illnesses and injuries occurring at hospitals and inpatient care facilities. Assistant Secretary of Labor for Occupational Safety and Health, Dr. David Michaels, has also advised that “[v]irtually all of these injuries and illnesses are preventable,” and he warns:
It’s time for hospitals and the health care industry to make the changes necessary to protect their workers. Healthcare Release (emphasis added).
Industry employers should heed this admonishment by familiarizing themselves with the details of the Directive, and taking steps to identify and rectify any of the five hazards at their facilities in advance, before any OSHA inspectors come knocking.
All Employers Should Respect OSHA’s Stance on Transgender Restroom Rights
OSHA’s press release on transgender rights – which announces the Agency’s official support for transgender workers having access to the restrooms of their choice, i.e., those “that correspond to their gender identity” – came as somewhat of a surprise to employers. This area of law has more traditionally been deemed the province of the Equal Employment Opportunity Commission (EEOC). But OSHA links its involvement with transgender rights to the Agency’s duty to ensure that all employees work in a “safe and healthful environment.”
According to OSHA’s recently published “Guide to Restroom Access for Transgender Workers”:
Bathroom restrictions can result in employees avoiding using restrooms entirely while at work, which can lead to potentially serious physical injury or illness. Guide at 1.
OSHA reportedly partnered with the National Center for Transgender Equality in publishing the Guide. In it, OSHA offers advice to employers on best practices for providing proper restroom access to employees who self-identify as “trans.” The Guide provides that:
Restricting employees to using only restrooms that are not consistent with their [self-described] gender identity, or segregating them from other workers by requiring them to use gender-neutral or other specific restrooms, singles those employees out and may make them fear for their physical safety. Guide at 1 (emphasis added).
In addition, according to the Guide, “[e]mployers should have written policies to ensure that all employees – including transgender employees – have prompt access to appropriate sanitary facilities,” and it is “[t]he employee [who] should determine the most appropriate and safest [restroom] option.” Id. at 2 (emphasis added).
At this time, there has not been any official word from OSHA on whether its future safety inspections will include scrutiny of transgender workers’ restroom access. But OSHA’s position on the issue is consistent with that taken by the EEOC in recent suits against employers on behalf of transgender employees, as we reported here, earlier in the year. Employers would thus be prudent to take seriously OSHA’s recently announced position on transgender rights, as well as to consider implementing the best practices OSHA recommends in its Guide.
We will be on the lookout for, and keep you abreast of, any new developments in this area as they occur.