OSHA says, Oh, yes, you can

Knowledge is power. In case you haven’t looked at your company’s P&P manual lately, contributor Steve Ariens takes you straight to a very basic reason for staying informed.

I think it would be hard to argue the fact that pharmacists are a pretty intelligent group. We struggle to get into pharmacy school, study hard, and struggle to graduate.

Many apply, but few succeed to the “finish line.” We come out of school well-versed in federal/state regulations, DEA, FDA, HIPAA, and an alphabet soup of things that we must obey or observe. Those of us who choose to practice in a community setting soon learn all the other hoops and hurdles of the various insurance payers that we have to deal with. Those who enter a more institutional setting have all the USP standards to keep abreast of.

All of us, some more quickly than others, come to realize that patients do not understand “8-bit words” that we have been using for the last 4 years and learn to drop our vocabulary down to the fourth-to-sixth-grade level, so that - we hope - they will understand what we are trying to communicate.

Once we enter the work force, there is a whole additional set of rules/regulations that are in place to protect US in the workplace.

Rules, regs, and the P&P manual

How many of us have had any training/instructions on FLSA (Federal Labor Standards Act), FMLA (Family Medical Leave Act), ADA (Americans with Disabilities Act), or OSHA (Occupational Safety and Health Administration), just to name a few?

And then there’s the company’s policy and procedure manual (P&P). This manual - which you probably haven’t read or even looked at - includes a number of items mandated by various federal/state agencies, along with rules that the company expects its employees to follow.

Sometimes the company finds out that some things that are intended to protect the company actually provide a number of protections to the employee that the company would rather the employee not know about.

If you don’t become very familiar with all these rules/regulations, your lack of awareness serves your employer better than it serves you. When you, as an employee, make a mistake - med error, HIPAA violation - one of the first things that the company will do is go to its P&P to figure out how it can absolve the company of any liability, and how you, the employee, violated company policy, and thus how you, the employee, could be held responsible for total liability and financial cost to settle.

It’s a federal rule

Would it surprise you that your employer and many employers are encouraging/intimidating/mandating their pharmacist(s) to break a federal rule that has been “on the books” since 1998 that could subject the employer to sizeable fines? The federal agency in charge of enforcing this rule only acts when an employee files a complaint or someone gets hurt on the job. Pharmacists can be causing the following health issues to themselves by complying with their employer’s demands: constipation, abdominal pain, urinary tract infections, renal damage, diverticulitis, and hemorrhoids, to mention just the obvious.

The federal agency is OSHA, and the rule that many of us are being encourage to ignore is bathroom breaks.

(Here’s a link to an online article.)

We’re talking bathroom breaks

In 1997, OSHA issued a $332,500 fine to Hudson Foods, a poultry processing plant in Missouri, for violations including failure to provide employees sufficient restroom breaks.

The OSHA regulations dictate the minimum workplace ratio of toilets to workers, but don't specifically speak to employees' rights to use the toilets. Still, OSHA determined in the Hudson case that the company violated the law when it refused to grant bathroom breaks.

An official Standards and Compliance Letter issued by OSHA in April 1998 says employers must give workers prompt and reasonable access to toilet facilities.

Can any of us imagine that the corporations we work for do not know that this rule exists, or the potential consequences to their employees if they postpone restroom breaks? This rule applies to all employees - both hourly and salaried.

Distracting - you bet

Collectively, we are all concerned about med errors. All you have to do is listen to any news report on any given day and you hear about the distraction of talking or texting on a cellphone while driving and how it is comparable to “driving drunk.”

Can anyone please tell me if the distraction of trying not to “pee your pants” is any less of a distraction than texting while driving? Look into your company’s P&P. I am sure that somewhere in there it is a dischargeable offense for working while intoxicated.

It may be a stretch, but in defending a med error, if you give “I was so distracted because I couldn’t get time to take a pee” as a reason, I can assure you that your company will defend itself with “We have no record of the employee ever expressing a concern about not being able to take restroom breaks. If he/she had said something, we would have taken corrective actions. Since it is against the OSHA law to prohibit an employee from taking a restroom break, we have never told any employee that he/she can’t take a restroom break.”

Here’s the plan

The next time you need to take a restroom break, TAKE IT.

Step 1. If management says something, send them an e-mail saying, "I wish to clarify/confirm my understanding of my conversation with XXXXX on MM/DD/YY that I should refrain from taking restroom breaks until absolutely necessary. I am concerned that the distraction of trying to ignore the urge to pee could cause a med error and affect patient safety. Unless I hear from you to the contrary, I will presume that my understanding is correct.”

Send the e-mail “read receipt,” and send a BCC to your personal e-mail account at home.

Continue to take your restroom breaks.

Step 2. If management says something again, send another e- mail, but this time, include the information on the OSHA rule. Express your concern about being instructed to violate a federal/state law. Look up the portion of the company’s P&P where it states that all employees MUST observe/obey all state/fed rules/regulations, and end with the same/similar closing statement from the first e-mail. Be sure to BCC yourself again.

Keep taking your restroom breaks!

Step 3. The next e-mail - along with copies of the previous e-mails - should go to HR/CCO (Chief Compliance Officer), then to the president/chairman of the board.

Step 4. If you cannot resolve the issue internally, then the company has left you with no choice but to file a complaint with OSHA. Up to this point, you have NOT COMPLAINED but expressed your CONCERNS about patient safety and about being told/asked to break federal/state law and the P&P. Now you have no choice but to file a COMPLAINT.

You are a healthcare professional. Take care of your own health and the health and safety of the patients you serve!

Steve Ariens is National Public Relations Director for The Pharmacy Alliance. You can reach him at steve@steveariens.com.

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