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Mr. Ebbink

Hospitality Law

California Takes Aim at Industry with Housekeeper-Specific Safety Proposal

By Benjamin Ebbink, Of Counsel, Fisher Phillips

Responding to years of pressure from union advocates and their allies, the California Occupational Safety and Health Administration (Cal/OSHA) has proposed a first-in-the-nation, industry-specific rule aimed at hotel housekeepers. If enacted, this proposal would greatly impact the industry in California (as well as operators who conduct business in multiple states including California). In addition, as California tends to lead the nation in employment and workplace safety standards, operators in other states should monitor this proposal closely - what happens in California may come to your state next!

After many years of discussion and debate, the Cal/OSHA Standards Board recently issued a proposed standard on "Hotel Housekeeping Musculoskeletal Injury Prevention." The proposal currently is open for public comment and will be considered further by the Board at a public hearing on May 18 in Oakland.

How We Got Here

For many years now, worker representatives (especially hotel worker union UNITE HERE) have advocated for special protections for hotel housekeepers, who they claim are exposed to serious occupational risks in the course of their normal work duties. In recent years, these advocates have pushed for local and state legislation to address issues such as hotel housekeeper workload, safe work practices, and other occupational standards. Several years ago, there was even (unsuccessful) California state legislation that would have required hotels to use "fitted" bottom sheets and long-handled tools to reduce the alleged strain on housekeepers.

Back in January 2012, UNITE HERE filed a petition with the Cal/OSHA Standards Board requesting the adoption of a specific standard to address workplace safety issues for hotel housekeepers. Among other things, the petition called for a ceiling of 5,000 square footage of total room space that employees may be assigned to during an 8-hour shift, a prohibition on requiring workers to clean bathroom floors and toilets in a stooped or kneeling position, mandatory use of fitted bottom sheets, and other specific requirements.

In May 2012, the Board rejected Cal/OSHA's recommendation to grant the petition, but subsequently requested that Cal/OSHA convene an advisory committee to discuss the issue further. From October 2012 through December 2015, Cal/OSHA convened five advisory committee meetings to solicit input from stakeholders.

On March 31, 2017, the Board released a proposed standard to address musculoskeletal injuries of hotel housekeepers. In introducing the proposal, the Board states that it will have the following "anticipated benefits":

"The proposed rulemaking will require employers in hotels and other lodging establishments to develop and implement a Musculoskeletal Injury Prevention Program (MIPP), evaluate each housekeeping task, process or operation of work to identify potential hazards that lead to thdevelopment of musculoskeletal injuries and curtail the high number of these debilitatinginjuries. Employers will be required to conduct a worksite evaluation to assess each housekeeping tasks with respect to potential causes of musculoskeletal injuries to housekeepers, control exposures and train employees on the employer's MIPP, the recognition of signs and symptoms commonly associated with musculoskeletal injuries, body mechanics and safe practices among other required elements, to mitigate the risk factors and minimize the injuries associated with tasks specifically related to hotel housekeeping jobs.

Employee input will be sought in designing and conducting the worksite evaluation and in the identification and evaluation of possible corrective measures. Employee involvement will improve the implementation of the recommendations and solutions and thus increase the effectiveness of the prevention program. These requirements should reduce the number of serious musculoskeletal injuries suffered by housekeeping employees, and in turn should reduce the fiscal losses due to work absence, staff replacement, workers' compensation, and possibly other legal costs."

What's In the Proposed Rule?

As a preliminary matter, the proposal applies to "lodging establishments, " which it defines as establishments that contains sleeping room accommodations that are rented or otherwise provided to the public, such as hotels, motels, resorts, and bed and breakfast inns. Cal/OSHA did not follow industry requests that (as a matter of fairness) any proposal should also apply to short-term rentals and vacation rentals.

Under the proposal, each covered employer would be required to establish and maintain a written musculoskeletal injury prevention program (MIPP) that addresses hazards specific to housekeeping. The proposal specifies that the MIPP may be incorporated into an existing injury and illness prevention program (IIPP) or maintained as a separate program, and must be readily accessible each work shift to employees (including electronic access).

Required Elements of the MIPP Include

  • Worksite Evaluations - For identifying and evaluating housekeeping hazards. The initial evaluation must be completed within three months of the effective date of the standard, and shall be reviewed and updated annually (or earlier if needed). The MIPP must include an effective means of involving housekeepers and their union representative in designing and conducting the worksite evaluation.

  • Specific Risks Identified - The worksite evaluation must identify and address potential risks to housekeepers including (1) slips, trips and falls, (2) prolonged or awkward static postures, (3) extreme reaches and repetitive reaches above shoulder height, (4) lifting or forceful whole body or hand exertions, (5) torso bending, twisting, kneeling and squatting, (6) pushing and pulling, (7) falling and striking objects, (8) pressure points where a part of the body presses against an object or surface, (9) excessive work-rate, and (10) inadequate recovery time between housekeeping tasks.

  • Injury Investigations - Procedures to investigate musculoskeletal injuries to housekeepers, including whether required tools or control measures were being used appropriately.

Corrective Measures

Methods for correcting hazards identified in the worksite evaluation or injury investigation (again including housekeepers and their union representative).

  • Training - Required when the MIPP is first established, to new hires, to all housekeepers given new job assignments, when new equipment or practices are introduced, and at least annually thereafter.
  • Recordkeeping - Including the MIPP, worksite evaluations, and training records.

Industry Impact and Concerns

In advisory committee discussions leading up to the release of the proposal, industry representatives (including the California Hotel and Lodging Association) argued that this approach ignores the fact that hotel housekeepers in California are safer and better-trained than ever before. According to data from the Bureau of Labor Statistics, the injury and incidence rates for housekeepers (including musculoskeletal disorders) declined significantly from 2010 to 2014. Industry representatives also pointed to scientific research that demonstrates that there is no causal nexus between housekeeping tasks and increased musculoskeletal risks, and that housekeeping tasks fell into acceptable zones of ergonomic designs under National Institute for Occupational Safety and Health (NIOSH) recommendations.

Moreover, the industry has been proactive in efforts to reduce injuries - ranging from developing and distributing a model IIPP, to pioneering policies to only change guest bedding every third day and reduce the laundering of linens and towels to conserve water resources. All of this demonstrates that the industry can (and is) working hard to address these issues on its own.

In addition, during the advisory committee process, industry representatives objected that this proposal is unnecessary as California law already requires all employers to have an effective IIPP program to address workplace hazards. Moreover, California already has a repetitive motion industry safety standard (8 CCR § 5510). Therefore, a proposal aimed specifically at one segment of one industry is unnecessary and duplicative.

In addition to these broad concerns, industry representatives have raised a number of objections about specific language and elements contained in the proposed standard.

So what about the bottom line? Brace yourselves. According to an economic impact analysis prepared by industry representatives in California, a government-mandated approach such as the one contemplated in the Cal/OSHA proposal would cost the industry a whopping $108.2 million over a five-year period (or over $20 million annually).

Next Steps

The Board will hold a public hearing at 10:00 a.m. on May 18, 2017 in Oakland to hear stakeholder and public comment. In addition, written comments may be submitted until 5:00 p.m. on May 18, 2017. Those interested in submitting written comments may do so by mail, fax, or email sent to oshsb@dir.ca.gov.

Benjamin M. Ebbink is Of Counsel in the Sacramento office of Fisher Phillips. With nearly two decades of experience in labor and employment law and in assisting the development of California labor law and regulations, he focuses on legislation introduced at the state and local level. Mr. Ebbink assists employers with navigating evolving legislative and regulatory landscapes in a variety of areas including workplace discrimination, employee privacy, wage and hour, employee compensation, trade secrets, employment contracts and terms, healthcare, immigration, employee leave, workers’ compensation, workplace safety and affirmative action. Mr. Ebbink can be contacted at 916-210-0400 or bebbink@fisherphillips.com Please visit https://www.fisherphillips.com/attorneys-bebbink for more information. Extended Bio...

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