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Ain't Nobody Got Time for a $90,000 Fine!

“Sharalyn Fichtl may be the smartest person I know”. Dr. Mike Abernathy

“In all likelihood, it’s not going to be too long before some good-old-boy dentist has to spend the last 20 to 30 years of his life behind bars because he didn’t have an OSHA policy”. Dr. Howard Farran

Mary Jane worked as the office manager for Dr. Know-it-all for 5 years. She had received good reviews and requested a raise two weeks ago but hadn’t heard anything about it. She started to think maybe she should get her resume “out there” to see if anything better pops up. One Friday, as an excuse to get out of the office and earn a few CEUs, she attended a risk management class at the local dental society. She learned of several safety and compliance violations that she realized were happening at the dental office. Dr. Know-it-all kept telling Mary Jane to do the research and just fix them. Mary Jane felt overwhelmed and wasn’t confident that whatever she put together was going to be correct. The seminar she attended was only for a couple of hours and was an overview of dental office safety and compliance; not a detailed list of every needed component. She also felt slighted because compliance was “totally not in her job description” and she wasn’t being compensated for the added duties. Her attitude wasn’t the greatest.

Then one day, after the last patient had left, one of the girls on staff mopped the floor in the hallway near Mary Jane’s office. She always mopped the floor around the same time every day. Then from around the corner comes the front office receptionist, Lindsey, in a hurry to catch a phone call. Lindsey slipped and hit the floor hard. She broke her collar bone and bruised her hip and elbow. Mary Jane told Lindsey, “I asked Dr. Know-it-all to approve the purchase of “Caution Wet Floor” signs several weeks ago but he never got back to me”! Even though the worker’s compensation was paying or her medical care, Lindsey filed an OSHA complaint against Dr. Know-it-all, per the advisement of her attorney.

OSHA Enforcement Officer Dean Gulberry arrived at the dental office two weeks later to investigate the complaint. Dr. Know-it-all had charm and wit that won over many patients and made many friendships over the years and Dean Gulberry would be a buddy in no time, so he thought. Dr. Know-it-all provided a guided tour of his office and graciously answered many questions. “I see your Formocresol here and I’ll need to see your written Formaldehyde Safety Plan and the records of employee training of that plan for the past 3 years before I leave today”. Dr. Know-it-all didn’t have that or any of the other safety plans Dean Gulberry asked to see nor did he keep record of employee training – he always told the employees to keep their own records.

Gulberry got around to conducting an interview with Mary Jane since she witnessed the incident. She confessed that she had asked Dr. Know-it-all to purchase the “Caution Wet Floor” signs, and other things, the month prior but that he kept putting it off and never would get back to her. Gulberry asked if she would forward him those emails she sent to Dr. Know-it-all. He gave her his official business card with his email address printed on it. She forwarded those emails right then. This is all the proof Gulberry needed to show the violations were “willful”. He had no intention to cut “Mr. Nice Guy/Dr. Know-it-all” any slack.

“Your signature is required here Dr. Know-it-all, then I’ll be out of your hair. Press hard please, there are 3 copies. Within the next 2 weeks you’ll receive a Citation and Notification of Penalty in the mail from the United States Department of Labor – Occupational Safety and Health Administration”. Dr. Know-it-all felt sick.

Not a single one of his dental colleagues have ever experienced this! He figured this whole thing was a mistake since this was a dental office and not some chemical plant or big retailer. “How much are all of these violations going to cost me”? As if it had been practiced a hundred times, Dean Gulberry said, “Willful violations are $90,000 at OSHA*. The details on how to schedule a formal hearing to try to get the fines reduced or eliminated will be in the citation letter that you’ll receive in the mail from OSHA”, and he slithered out the door. Dr. Know-it-all was furious!

In about 2 weeks’ time, Dr. Know-it-all received the dreaded letter. The envelope felt thick, like there was a lot in there. He began to read silently to himself. “Wait, what??? I have to post a copy of this Citation and Notification of Penalty in a prominent place where all employees can see it? No way! I only have 15 days to abate the violations AND pay the fines listed?!?! Or, I can abate the violations and request a formal hearing to contest the fines. Can I can fix all of this in just 2 weeks??   An attorney and a day away from my patients will cost me so much money.   I guess I don’t have a choice. Why didn’t I just get all of this compliance stuff taken care of from the get-go?!?! I made this way too easy for that jerk Dean Gulberry”.

Always be prepared for the things that probably won’t happen to you. It’s not much different than buying insurance for your car or house. They probably won’t get wrecked or catch on fire but you buy the insurance anyway, just in case. Compliance is one of those things every dentist should incorporate into the very fiber and foundation of their business because it is the responsible thing to do. Nobody said it would be cheap. Nobody said it would be fun. Nobody said it would make you immune to issues. I can tell you though that there are many dentists before you that know from experience that compliance is cheaper than attorneys, clearing your schedule and paying fines. Compliance is more fun than formal hearings. Compliance helps you to not be the lowest hanging fruit.

Never conduct business as a dentist with employees without knowing you and your employees’ rights. Study how to conduct yourself if an OSHA investigator wants to talk to you, employees or conduct an onsite inspection. Never go it alone! Proactive compliance requires help. Reactive defense of your license and your practice does too. Have an attorney in your contact list that is familiar with OSHA and employment law.

This article is based on the principles of the Federal OSHA Guidelines but is not irrelevant to those states with their own State-OSHA programs. If you have a weak or non-existent OSHA program, regardless of the state you live in, you need to start somewhere and start implementing some type of an OSHA program. Something is better than nothing. The Federal Guidelines will get you going in the right direction so that you can then implement the additional (and/or more restrictive) elements of your particular state program.

States that follow Federal OSHA Guidelines are Alabama, Arkansas, Colorado, Delaware, Florida, Georgia, Idaho, Kansas, Louisiana, Maine, Massachusetts, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Texas, West Virginia and Wisconsin.

States that follow State-OSHA Guidelines are Alaska, Arizona, California, Connecticut, Hawaii, Illinois, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virgin Islands, Virginia, Washington and Wyoming.

RESOURCES:
*Willful violation fine amounts will vary according to whether your state has its own OSHA program or whether it follows the Federal OSHA Guidelines. For example, willful violations for Cal-OSHA max out at $70,000.
https://www.osha.gov/dcsp/osp/index.html
http://ehstoday.com/standards/osha/osha_inspections_expect
http://www.dir.ca.gov/dosh/doshreg/Abatement-of-Hazards/rulemaking-documents-for-abatement-of-hazards.pdf
www.osha.gov

Sharalyn Fichtl
Dental Quality Assurance, PLLC
www.dentalqualityassurance.com
469-343-7888 (talk or text)

PS – Her fee is quite reasonable, but if you’re a member of BEST for Dentistry (www.bestfordentistry.com) she has agreed provide a 50% reduction. So if you aren’t a member yet, join today! Sharalyn has really made it both easy AND affordable for you and your office to navigate and meet the complex requirements of compliance.   (MG)