By Gary Finch
OSHA inspectors are divided into two major divisions, industrial and health care. In most cases, funeral homes draw inspectors from the healthcare division. It makes sense on the surface because embalmers are exposed to bloodborne pathogens and work with many of the instruments that are used in the operating room. The problem is, we are not healthcare. No embalmer is so good that any of their patients have been cured and walked out of the facility.
This division often leads to other problems during OSHA inspections. Consider the Annual Summary of Occupation Injuries report that healthcare is required to post each year. Funeral homes receive an SIC exemption, and in most cases, are not required to file it. Yet, in a number of cases, neither the inspector nor the funeral home safety officer was aware of the exemption. The funeral homes were cited. Some paid fines when all they had to do was point out that they were exempt from the rule. In these cases, both OSHA and the funeral homes were unaware of the exemption.
The 2002 safe sharps amendment to the Bloodborne Pathogen Standard requires businesses to hold certified annual interactive training sessions on sharps safety, but because we are not healthcare, we are not required to conduct comparative sharps evaluations as a hospital is required to do. Funeral homes are required to stock safe sharps as they become available on the market and make them available to employees. Sharps related items that are available now include:
- Disposable scalpels
- Safe syringes
- Slip-resistance latex gloves
- Some instruments designed for safe operations
The suppliers that serve healthcare offer these items months or years before most funeral suppliers offer them. If you want to see a look of disbelief on an OSHA inspector’s face, try telling them that safe instruments that have been used in operating rooms for a year are not yet offered by suppliers to our industry.
Thus, we have become in a sense, one of OSHA’s bastard children. To make matters worse, under Bush, OSHA is targeting industries that have the highest incident rates for general inspections. Funeral homes have a very low incident rate. We rank right up there with barber shops and real estate agencies. Thus, in states under federal OSHA, the only time OSHA even makes an inspection is when an employee files a complaint. And then, the inspection is limited to the areas of the complaint. In other words, if there was a complaint regarding safe sharps, the inspector can inspect anything that falls within the bloodborne pathogen standard, but they aren’t going to be checking the fire extinguishers like they might in a general inspection.
Back in the days when OSHA was actively making planned funeral home inspections, there were safety problems the inspections did not address. In my own private inspections of preparation rooms, I have found large coffee cans that were full of plutonium charged pace makers. The plutonium has a shelf life of 4000 years. In many cases, the pace makers were unmarked. In other cases, the hospital where they were installed is located in another state. There are pace maker pick-up services that call on hospitals, but none that call on funeral homes. Most hospitals will not accept a pace maker for disposal that was not installed in their hospital. I have alerted OSHA to the problem and am waiting for their answer. I have now been waiting for four years. By contrast, a funeral home has 15 days to respond to OSHA.
I can enumerate multiple examples of a funeral home picking up a CJD case, only to learn later (after the embalming) that it was a suspected CJD case. It is little comfort to the embalmer that they remain free of symptoms after two years when the time between exposure and the onset of symptoms can be 20 years or longer. These are very real problems, but not the type in which OSHA has shown any interest in solving.
Funeral homes are also caught in a cross fire between OSHA and the new HIPPA that deals with privacy in medical records. Two years ago, the politicians told us this would keep physicians from trading our private medical records around like baseball cards. That was the spin, but if you have been to a physician in the past year, you can attest to the waivers (that forfeit your privacy rights) you have to sign before you see your doctor. The reality is that now, more than ever, insurance companies can trade your private health information around like baseball cards, and we have no recourse.
An OSHA inspector went to one of my clients this past year requesting a copy of an accident victim’s death certificate. My client refused his request, citing privacy laws enacted by HIPPA. He was right to refuse OSHA since it is clear a death certificate is considered a medical record. The inspector stormed out saying he would be back. Imagine a funeral home that gets in trouble for complying with a federal law. Is this a great country or what?
The point is, if OSHA inspects you, the inspector may ask to view an employee embalming a body. It will serve you well to tell the inspector that due to HIPPA and privacy rights, he or she must first obtain written permission from the next of kin or a court order. Under those circumstances, the funeral home would not be expected to delay the injection. To do otherwise, risks non-compliance with HIPPA.
Under OSHA, particularly during the past 15 years, funeral homes have made tremendous advances in ensuring a safer workplace for embalmers. Yet, there are probably areas in your own workplace that OSHA has not specifically addressed. As an embalmer, you should be familiar with OSHA’s General Duty Clause. This provision allows the employee to present a unique problem to their employer, and requires the employer to address the problem. Failure of the employer to address any safety issues that an employee has reported is a violation and can result in fines.
OSHA does not claim to be a cure-all for every safety problem. There is no substitute for an employee using self-reliance. That means be alert for problems, alert your superior to them, and if their action does not address the problem to your satisfaction, report them to OSHA. Don’t be thrown off-course because you believe OSHA inspectors are ignorant when it comes to embalming practices. The same inspectors that inspect funeral homes also inspect neurosurgeons. They don’t have to have intimate knowledge of a field to be effective. They are intimately familiar with the process, and if they need to, they will ask you to explain a particular problem to them.
In the past, employees might choose to wait around and do nothing, thinking that someday, OSHA will be inspecting your employer. The fact is, that is not very likely to happen. Now, more than ever, it is up to you to initiate action. You must alert your employer when you have a safety issue or problem. If it is not corrected, you must notify OSHA to report it. If you are unwilling to do that, don’t expect anything to change.