Healthcare and Social Service Settings in OSHA’s Crosshairs
The Occupational Safety and Health Administration (OSHA) is stepping up its enforcement efforts with respect to workplace violence (WPV) in healthcare and social service settings. In 2013, healthcare and social service workers were almost four times more likely to be injured as a result of WPV than other types of workers.1 Of the 100 fatalities reported in healthcare and social service settings in 2013, 27 were the result of WPV and 80 percent of the serious WPV incidents in healthcare settings were caused by patients.2 Currently, employers in these settings find themselves in OSHA’s cross hairs. This article focuses on the impact of OSHA’s stepped up enforcement efforts with respect to workplace violence committed by those served in these settings.
The General Duty Clause
The Occupational Safety and Health Act, which is administered by OSHA, was passed in 1970 “[t]o assure safe and healthful working conditions for working men and women….”3 Most employers in the private sector are covered under the act, which defines “employer” as any “person engaged in a business affecting commerce who has employees, but does not include the United States or any state or political subdivision of a [s]tate.”4 The act does not cover self-employed persons; farms that employ only immediate family members; working conditions regulated by other federal agencies; and employees of state and local governments, unless they are in one of the states operating an OSHA-approved state plan.5 Florida does not have an OSHA-approved state plan.
Each covered employer has a general duty under the act to furnish each employee “a place of employment…[that is] free from recognized hazards that are causing or likely to cause death or serious physical harm” and to “comply with occupational safety and health standards promulgated under this [a]ct.”6 This provision is known as the general duty clause. OSHA may cite an employer for violating this clause when no specific regulatory standard exists (e.g., an OSHA regulation regarding hazardous materials). In other words, the clause may operate as a powerful “catch-all” provision.
To establish a violation of the general duty clause, OSHA must prove the following elements: 1) that a condition or activity in the workplace presented a hazard to employees; 2) that the employer or the employer’s industry recognized the hazard; 3) that the hazard caused or is likely to cause death or serious physical harm; and 4) that feasible means exist to eliminate or reduce the hazard.7 Currently, a civil penalty of up to $70,000, but not less than $5,000,8 may be assessed against an employer for each willful violation9 of the general duty clause.
Because the clause contemplates workplace hazards that are not covered by specific OSHA standards, it has very broad potential applicability as an enforcement tool. One such hazard, which is not covered by OSHA standards and is currently very much in the news, is WPV. The National Institute for Occupational Safety and Health (NIOSH) defines workplace violence as “violent acts (including physical assaults and threats of assaults) directed toward persons at work or on duty.”10 OHSA has identified four types of WPV, including those committed by 1) persons who enter the workplace for a criminal purpose, such as robbery; 2) persons for whom the employer provides a service, such as patients, clients, etc.; 3) current or former employees; and 4) nonemployees who have personal relationships with employees.11
Updated Guidelines for Preventing WPV
WPV comes with a high price tag for employers. The obvious physical or emotional injuries to the victims of WPV can lead to less obvious morale and productivity issues, which in turn, can lead to increased employee turnover rates.12 Also, employers may experience substantial financial costs as the result of WPV, including increased workers’ compensation costs, overtime costs, and the costs associated with recruiting and hiring someone to fill an injured employee’s position.13
In April 2015, OSHA published updated Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers.14 The guidelines are “advisory in nature” and do not affect existing OSHA standards or create new legal obligations for employers. They reflect OSHA’s current focus on the prevention of WPV in industries identified by OSHA as high risk, such as healthcare and social service settings,15 which include hospitals, nursing homes, mental health centers, group homes, etc.16
The guidelines call for the development of a written WPV prevention program as part of each healthcare and social service employer’s overall health and safety program.17 The process begins with management’s recognition that workplace violence is a safety and health hazard.18 OSHA identifies five building blocks of an effective prevention program in the guidelines: 1) management commitment and employee participation; 2) worksite analysis; 3) hazard prevention and control; 4) safety and health training; and 5) recordkeeping and program evaluation.19 The guidelines also include checklists that can be tailored for use in evaluating conditions and activities in the workplace that may place workers at risk for WPV, as well as possible abatement measures, i.e., engineering and administrative controls,20 to reduce or eliminate WPV hazards.
Workplace Violence Investigations
In June 2015, several months after publishing its updated guidelines, OSHA publicly announced that it will expand its enforcement resources to focus on WPV (and other safety and health risks) in future inspections in the healthcare industry.21 OSHA identified WPV as a “key hazard,” which in addition to other key hazards, such as musculoskeletal disorders, blood borne pathogens, tuberculosis, and slips, trips and falls, will be targeted in these inspections.22 Therefore, an OSHA inspection may reasonably be expected in response to a complaint, referral, fatality, or catastrophic event23 involving workplace violence. This is particularly true in healthcare and social service settings, which are identified by OSHA as high-risk industries for potential WPV. In fact, WPV in healthcare settings is already on OSHA’s radar screen.
In February 2014, an investigation was conducted by OSHA’s Manhattan-area office at a 530-bed hospital in Brooklyn, New York, in response to a complaint of WPV.24 OSHA determined that the hospital failed to adequately protect its employees from workplace violence, including physical injuries, intimidation, and threats by patients and visitors.25 According to OSHA, there were approximately 40 incidents at the hospital in just over a two-month period of time from February to April 2014.26 The most serious incident involved a 70-year-old nurse who suffered severe brain injuries as the result of a violent attack by a patient who knocked her to the floor and repeatedly kicked her in the head while she lay unconscious.27 OSHA found that the hospital’s management was aware of the WPV problem and its prevention program was ineffective to stop the assaults against its employees.28
In August 2014, after completing its investigation, OSHA cited the hospital for a willful violation of the general duty clause and issued a proposed fine of $70,000 as a result of the hospital’s failure to develop and take adequate measures to reduce or eliminate WPV by patients or visitors.29 OSHA also issued a proposed fine of $8,000 against the hospital for violations relating to its handling of an OSHA illness and injury form.30
Finally, almost a year later, on July 6, 2015, OSHA announced that it had reached a settlement with the hospital.31 The terms of the settlement included a $15,000 fine; employee training; more holistic WPV prevention efforts; improved communication with employees; guidance for actions before, during, and after WPV; and the engagement of an outside consultant with expertise in WPV in hospital settings.32 As further agreed by the parties, OSHA will monitor the hospital’s progress on its corrective actions.33
Closer to home, an administrative law judge (ALJ) for the Occupational Safety and Health Review Commission (OSHRC)34 recently affirmed citations issued by OSHA against a Florida healthcare service company for failing to protect an employee who was stabbed to death by one of her clients.35 The employee worked as a social services coordinator for the company, which specializes in community-based nonclinical support for individuals with healthcare and social service needs. Like other social services coordinators, she visited violent and dangerous clients in their homes and transported them in her personal vehicle for mental and physical health evaluations. The employee had only been on the job for approximately three months when a client with severe mental illness and a violent criminal history stabbed her to death outside his home. The employee’s case notes revealed that she had concerns about the client and was uncomfortable being alone with him.36 Commenting on the tragedy, OSHA’s acting regional director for the southeast, Teresa Harrison, claimed “[t]his incident could have been prevented if the employer had a comprehensive, written, workplace violence prevention program to address hazards and assist employees when they raise concerns about their safety.”37
According to OSHA, the company knew the client had high-risk behaviors posing a potential threat of violence and did not take any steps to protect its employee.38 Additionally, in the course of OSHA’s investigation, other incidents of aggression and verbal and physical threats by clients against company employees were discovered.39 OSHA investigators issued citations to the company for failing to protect the victim and failing to report her death to OSHA.40 The citations included proposed penalties of $10,500, which the company contested.41 Following a hearing on the matter, an ALJ affirmed the citations finding that the company’s approach to safety was inadequate and that it should have taken precautionary measures to prevent injury to the employee.42
The company subsequently filed a petition for discretionary review of the ALJ’s decision with the OSHRC. Among other things, the company has challenged the applicability of the general duty clause to criminal acts by third parties, i.e., clients, and contends that the ALJ’s decision would “fundamentally alter” an employer’s relationship with those it serves.43
On September 18, 2015, the OSHRC issued a briefing notice and invitation to file amici curiae briefs regarding the issues raised by the company in its petition and whether the general duty clause applies to the condition at issue, i.e., physical assaults against the company’s employees by clients with a history of violence.44 Additionally, the OSHRC requested that the parties and amiciaddress whether OSHA established that the “[company] or its industry recognized the hazard and that a feasible and effective means of abatement existed to materially reduce the hazard.”45 The parties were further invited to address the effect, if any, of the guidelines.46 Ultimately, the OSHRC’s decision is expected to provide long-awaited guidance on the application of the general duty clause to WPV against healthcare workers by their patients and clients.
In the meantime, as we await the OSHRC’s decision, OSHA is continuing its focus on workplace violence in healthcare settings. In fact, on December 1, 2015, OSHA launched a new website to assist employers and workers in healthcare settings in the prevention of WPV.47 In addition to providing tools and strategies, the website offers real life examples of successful WPV prevention programs in healthcare settings. Assistant secretary of labor for OSHA, Dr. David Michaels, commented on the new website, noting that most injuries to healthcare workers are preventable “and OSHA is providing these resources [i.e., the webpage] to help combat these incidents and raise awareness that violence does not need to be part of the job.”48
Substantial Increase in OSHA Penalties
As if OSHA’s stepped-up enforcement efforts regarding WPV were not enough to grab the attention of employers in high-risk industries, OSHA penalties are expected to increase substantially in the very near future. This is because the Bipartisan Budget Act of 2015,49 which was signed by President Obama in early November 2015, includes a provision that requires OSHA to make a one-time initial adjustment in penalties or catch-up adjustment based on the percentage difference between the consumer price index (CPI) for October 2015 (237.838) and October 1990 (133.500), i.e., by approximately 78.16 percent.50 This means the current $70,000 penalty limit for willful and repeat violations could jump to approximately $124,712; and the current $7,000 penalty limit for serious and other than serious violations51 could jump to approximately $12,471. Following the one-time catch-up adjustment, which must be made by August 1, 2016, OSHA may increase its penalties every year thereafter based on the annual percentage increase in the consumer price index. The law caps the overall increase at 150 percent.52
Although OSHA is not required to make the full catch-up adjustment called for under the budget act, it is this author’s belief that OSHA very likely will. First, under the terms of the act, OSHA would be saddled with a greater rulemaking burden if it were to increase penalties by less than the full amount required. Specifically, OSHA would have to determine in a final rule that the required increase would result in a negative economic impact or that its social costs would outweigh the benefits; and the director of the office of management and budget would have to agree with the determination.53 Just prior to President Obama signing the budget act, Dr. Michaels testified on October 7, 2015, before the U.S. House of Representatives Committee on Education and the Workforce Subcommittee on Workforce Protections that OSHA’s current “very low level of civil penalties…[and] weak criminal sanctions” present the “most serious obstacle” to its enforcement efforts.54 Dr. Michaels urged an increase in both civil and criminal penalties “to provide a real disincentive for employers accepting injuries and worker deaths as a cost of doing business.”55 Thus, indications are that OSHA will increase its penalties to the maximum amount required under the act.
Against the backdrop of OSHA’s focus on WPV in high-risk industries, employers already in OSHA’s crosshairs may be assessed substantial penalties if they do not adequately protect employees against workplace violence, just like any health or safety hazard that is regulated by OSHA. The current mandate is clear — now is the time for employers in high-risk industries — to consult the updated guidelines and make sure they have effective WPV prevention programs in place or face a potentially costly encounter with OSHA the next time an employee is injured in a WPV incident.
1 U.S. Department of Labor, Preventing Workplace Violence in Healthcare, https://www.osha.gov/dsg/hospitals/workplace_violence.html.
3 Occupational Safety and Health Act of 1970, 29 U.S.C. §651, et seq.
4 29 U.S.C. §652(5).
5 OSHA, We Can Help, available at https://www.osha.gov/Publications/3334we-can-help-sm.pdf.
6 29 U.S.C. §654(a)(1).
7 Robert Sand Co., LLLP v. Secretary of Labor, 568 F. Appx. 758, 759 (11th Cir. 2014); Waldon Health Care Ctr., 16 BNA OSHC 1052, 1058, No. 89-2804 (1993); and Champlin Petroleum Co. v. Occupational Safety & Health Review Comm’n, 593 F.2d 637, 640 (5th Cir. 1979).
8 92 U.S.C. §666(a).
9 In the U.S. 11th Circuit (which covers Florida), a willful violation is defined as “an intentional disregard of, or plain indifference” to OSHA requirements. J.A.M. Builders, Inc. v. Herman, 233 F.3d 1350, 1355 (11th Cir. 2000).
10 Centers for Disease Control and Prevention, The National Institute for Occupational Health (NIOSH), Violence: Occupational Hazards in Hospitals (2002), available at http://www.cdc.gov/niosh/docs/2002-101/.
11 OSHA, OSHA Instruction (Sept. 8, 2011), available at http://www.osha.gov/OshDoc/Directive_pdf/CPL_02-01-052.pdf (enforcement procedures for investigation or inspecting workplace violence incidents).
12 See note 1.
14 OSHA, Guidelines for Preventing Workplace Violence for Health Care and Social Service Workers, OSHA Publication 3148-04R (2015).
15 OSHA, Enforcement Procedures for Investigation or Inspecting Workplace Violence Incidents at *5 (Sept. 8, 2011), available at http://www.osha.gov/OshDoc/Directive_pdf/CPL_02-01-052.pdf.
16 OSHA, Guidelines for Preventing Workplace Violence for Health Care and Social Service Workers, OSHA Publication 3148-04R (2015).
20 Id. at *13 (“Engineering controls are physical changes that either remove the hazard from the workplace or create a barrier between the worker and the hazard.”); Id. at *17 (administrative controls involve “changes in work practices and administrative procedures”).
21 U.S. Department of Labor, OSHA, OSHA Adds Key Hazards for Investigators’ Focus in Health Care Inspections, news release (June 25, 2015), available at https://www.osha.gov/newsrelease/nat-20150625.html.
23 OSHA, Enforcement Procedures for Investigation or Inspecting Workplace Violence Incidents, OSHA Instruction CPL 02-01-052 at *6 (Sept. 8, 2011), available at http://www.osha.gov/OshDoc/Directive_pdf/CPL_02-01-052.pdf (A “catastrophic event” is defined by OSHA as “[t]he hospitalization of three or more employees resulting from a work-related incident or exposure, in general, from an incident caused by a workplace hazard”).
24 OSHA, Brooklyn Medical Facility Cited by U.S. Department of Labor’s OSHA for Inadequate Workplace Safeguards (Aug. 11, 2014), available at https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=26514.
27 Id. See also CBS New York/AP, Cops Probe Why Patient Allegedly Beat Nurse Unconscious (Feb. 9, 2014), http://newyork.cbslocal.com/2014/02/09/cops-probe-why-patient-allegedly-beat-nurse-unconscious/.
28 See note 24.
31 OSHA, More Employee Protections Against Workplace Violence, Thanks to Changes at Brookdale University Hospital and Medical Center (July 6, 2015), available at https://www.osha.gov/newsrelease/reg2-20150706.html.
34 Occupational Safety & Health Review Commission, http://www.oshrc.gov/. The OSHRC is a two-tiered independent federal agency that provides ALJs to decide contested citations and penalties and provides discretionary review of ALJ decisions by a panel of commissioners.
35 Secretary of Labor v. Integra Health Management, Inc., OSHRC Dkt. No. 13-1124, 2015 WL 4474372 (June 22, 2015).
36 OSHA, Judge Affirms OSHA Findings in 2012 Death of Health Care Coordinator Killed by Mentally Ill Client with Violent Criminal History (July 1, 2015), https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=28218.
37 OSHA, Maryland’s Integra Health Management Cited by U.S. Department of Labor’s OSHA for Workplace Violence Hazards Following Employee Fatality (June 10, 2013), available at https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=24171.
38 OSHA, Judge Affirms OSHA Findings in 2012 Death of Health Care Coordinator Killed by Mentally Ill Client with Violent Criminal History (July 1, 2015), https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=28218.
42 Secretary of Labor v. Integra Health Management, Inc., OSHRC Dkt. No. 13-1124, 2015 WL 4474372 (O.S.H.R.C.A.L.J.) *46 (June 22, 2015).
43 Secretary of Labor v. Integra Health Management, Inc., OSHRC Dkt. No. 13-1124, Respondent’s Petition for Discretionary Review (July 9, 2015).
44 Secretary of Labor v. Integra Health Management, Inc., OSHRC Dkt. No. 13-1124, Briefing Notice and Invitation to file Amici Curiae Briefs (Sept. 18, 2015).
47 OSHA, Preventing Workplace Violence in Health Care, https://www.osha.gov/dsg/hospitals/workplace_violence.html.
48 OSHA, OSHA Issues Tools to Help Prevent Workplace Violence in Health Care Settings (Dec. 1, 2015), available at https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=29100.
49 Bipartisan Budget Act of 2015, Pub. L, No. 113-67, 127 Stat. 1165 (2015).
50 Id. at §701, Civil Monetary Penalty Inflation Adjustments. The last time OSHA’s civil penalties were raised was in 1990.
51 29 U.S.C. §666(b), (c).
52 Bipartisan Budget Act of 2015, Pub. L, No. 113-67, Sec. 701, 127 Stat. 1165 (2015).
54 Hearing before the House Committee on Education and the Workforce Subcommittee on Workforce Protections, 114th Cong., 1st sess. (2015) (statement of David Michaels, PH.D., MPH, asst. sec., Occupational Safety and Health Administration).
Sharon Wey is an attorney with the law firm of Miller Tack & Madson in Tampa, which only represents management in labor and employment law matters.
This column is submitted on behalf of the Labor and Employment Law Section, Frank E. Brown, chair, and Robert Eschenfelder, editor.