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Texas Mutual’s e-Learning ADVANTAGE
OSHA Can Look Back Beyond Five Years for Repeat Violations
Working at a hospital can create unique safety challenges. The HOTCOMP Safety Committee is committed to helping our member hospitals address those challenges to create a safer work environment for their employees. One of the 2018 initiatives is to work with Texas Mutual to create webinars that address the challenges hospitals face with employee safety. The HOTCOMP Safety Committee is asking for your help. Please complete the survey and let us know what will help you and your hospital.
Texas Mutual hosts webinars to help employers learn how to keep their employees safe. Click here to access past webinars and to register for upcoming webinars. 
The next webinar is:
April 6: OSHA’s Calling, Now What?
OSHA is responsible for enforcing federal safety and health regulations. Learn how OSHA selects workplaces to inspect, what OSHA agents look for during the inspection and what you should do to make it run smoothly.
Some of the past webinars have been:
March 2: Active Shooter
How do you keep your employees safe when you have an active shooter on the premises? We’ll discuss how to prepare for an active shooter situation and provide tips for keeping your employees safe in the moment.
Developing (and Maintaining) a Successful Safety Culture
Having a safe work environment requires teamwork and commitment from each member of the organization. We’ll discuss how to create a safety culture that keeps employees involved and promotes safe behavior all year long.
We all know the consequences of not following the rules, but some still get caught. We’ll list the top 10 regulations cited by the Occupational Safety and Health Administration last year and how to avoid them.
HOTCOMP will miss long-time Board and Safety Committee Member John Henderson. John and his family are moving to Austin to embark on his new role as CEO of TORCH (Texas Organization of Rural and Community Hospitals).
As the CEO of Childress Regional Medical Center, John was instrumental in helping HOTCOMP succeed. He has continued to bring fresh ideas to help our hospitals become safer work places.
As John prepares for his new role, we want to be sure he knows he is admired and his service has been appreciated. We wish him the best of luck on his next adventure.
OSHA Can Look Back Beyond Five Years for Repeat Violations
Court decision means employers should take a second look at contesting serious violations.
David Sparkman | Mar 12, 2018
A recent court decision extending the time limitation for OSHA to assess repeat violations has upped the ante for employers who until now chose not to contest more routine violations because of the cost of defending them.
OSHA defines violations of its regulations as willful, repeat, serious, or other-than-serious. The higher the classification, the larger the penalty. While the current maximum penalty for what OSHA terms as a serious violation is $12,934, the maximum for repeat violations can be assessed as much as close to 10 times that amount—$129,336.
Prior to 2015 it was the agency’s practice to look back no further than three years for citations that could add up to repeat violations. In 2015, OSHA increased that period to five years in a revision of its Field Operations Manual (FOM) for its enforcement staff.
However, a decision handed down by the U.S. States Second Circuit Court of Appeals in February serves as a reminder that the period of time recommended by the FOM does not impose a legal limitation that restricts OSHA’s ability to establish repeat violations.
The court was asked whether the five-year period applied to a 2015 repeat citation issued to Triumph Construction Corp. because OSHA, in order to establish the repeat violation, had chosen to include a prior citation from more than three years earlier.
Triumph argued that OSHA’s decision to examine and include citations beyond the three-year period set out in the FOM was arbitrary. The court determined that the earlier guidances in the staff manuals that appeared to establish a rigid three- or five-year look-back period in reality were not binding on the agency. The court pointed out that neither the Occupational Safety and Health Act nor the regulations OSHA had issued under the Act spelled out any time period that limited the issuance of repeat citations.
The court also noted that the previous Occupational Safety and Health Review Commission precedent had established that the time limitation set forth in the enforcement manual “is only a guide” and “is not binding on OSHA or the commission,” which also freed OSHA from only being able to review a certain number of years to classify violations as repeat.
Avoiding Repeat Violations
How should employers respond to this decision? Attorneys David Klass and Travis Vance of the law firm of Fisher Phillips have some ideas. First of all, they point out that employers don’t need to fear confronting this issue at all if they can adhere to safety practices that don’t draw OSHA citations to begin with.
“First and foremost, employers should continue to effectuate their safety policies and to emphasize a safety-first culture in the workplace,” Klass and Vance stress. “This is the best practice to avoid most OSHA inspections and citation.”
If OSHA inspectors find what they believe is a violation resulting in a citation, employers should reexamine their policy if in the past they chose to simply pay the fee to avoid incurring the costs associated with fighting it. “The cost-benefit analysis for contesting non-repeat citations has changed,” the attorneys emphasize. “Employers should seriously consider whether to contest citations to which they have a good faith defense so that those citations do not later form the basis of a repeat citation.”
If in the past an employer thought that contesting a $12,500 serious citation was not worth the legal cost, the risk of being hit with a repeat violation of $125,000 several years down the road may tilt the balance toward contesting those lesser citations, Klass and Vance observe. “Pay special attention to any citation that involves a routine activity, task, or equipment where a repeat is more likely to arise in the future.”
The attorneys also reinforce the importance of maintaining comprehensive records and data regarding prior OSHA inspections and citations to ensure that citations regarding the same hazards don’t reoccur. “This will hopefully prevent the issuance of a repeat citation, no matter what the repeat time period OSHA may attempt to enforce,” they say.
Although the Triumph decision didn’t really create new law, it should remind employers that OSHA has broad enforcement discretion with respect to its repeat violation period. “Remain proactive in your efforts to develop a robust safety program in order to minimize OSHA citations and avoid the higher penalties associated with repeat citations,” Klass and Vance conclude.
Texas Mutual’s e-Learning ADVANTAGE
Texas Mutual’s e-Learning, offers an innovative approach to online learning. Policyholders have access to our new course catalog containing 200 courses accompanied by quizzes. With e-Learning, employers can assign training, view results, send announcements and keep records easily. HOTCOMP members also have exclusive access three new e-Learning courses customized for the group.
Take a look at our informational e-Learning sheet, watch a preview below, then log in to explore e-Learning.
New e-Learning for safety group members
Policyholders who are also safety group members now have exclusive access to three new e-Learning courses customized for their group.
Learn about the new courses below:
Log in to get started.
Your Safety Committee
The HOTCOMP Safety Committee meets twice a year to discuss the issues of safety in our member hospitals and what we can do to do to help make them safer workplaces.The majority of the Committee members are administrators and safety specialists in your fellow member hospitals. We understand that issues come up through the year. If you would like to post a question to the safety committee members as a group or individuals, please email us at safety@hotcomp.net. We will pass your questions on to the appropriate member(s).
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Barry Couch, CEO
Program Administrator
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Linda Rasor, CEO
Castro County Hospital
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Gayle Cannon, Director of HR
Childress Hospital
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Carol Villareal, HR Manager
Gonzales Healthcare
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Christina Hertel, Director of HR
Hamilton General Hospital
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Marcy Murrell, Co-Safety Director/Infection Control Nurse
Sweeney Hospital
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About Safety Matters:
It is our hope that this publication, in addition to Texas Mutual’s Safety Resource Center, proves a useful tool to promote safety in our members’ hospitals. The newsletter will focus on safety issues that specifically trend to our membership hospitals.
We hope to hear from you on safety issues your hospital is facing and on successful safety procedures you have implemented. It is the safety committee’s goal to create a collaborative exchange of ideas that contributes to making all of our hospitals safer which, in turn, will increase our safety group’s benefits.
Please send your ideas, questions and comments to safety@hotcomp.net.
Why Your Safety Matters:
You’re receiving this email as a member of the HOTComp safety group. The group is a joint effort between HealthSure and Texas Mutual Insurance Company.
Group members receive exclusive benefits like targeted safety resources, a discount on their workers’ compensation insurance and potential dividends based upon the safe performance of the group. HOTComp group participants have shared in over $1 million in group dividends since 2008 in addition to individual dividends from Texas Mutual.