Reposted from the Labor & Employment Law Navigator Blog - Click Here to Subscribe
Over the past two decades, workplace violence has unfortunately become increasingly prevalent, particularly in the health care and social service industries. As OSHA itself acknowledges, approximately 75 percent of workplace assaults reported annually occur in health care and social service settings and workers in health care settings are four times more likely to be victimized than other workers in private industry. More recent studies, including one conducted in 2016 by the Government Accountability Office, have found the rate of violence against health care workers is up to 12 times higher than those of the overall workforce.
Although OSHA has been more aggressive of late in its pursuit of employers who have experienced workplace violence incidents, the Department of Labor has not used its rulemaking authority to issue specific standards or regulations on workplace violence. Recent citations, including the serious violation at issue in Secretary of Labor v. Integra Health Management, Inc., No. 13-1124 (OSHRC March 4, 2019),
have instead relied on OSHA’s gap-filling provision, the General Duty Clause, which states that "[e]ach employer . . . shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." 29 U.S.C. § 654(a)(1). Although the Department of Labor announced two and a half years ago, in January 2017, that it would begin the rulemaking process on a workplace violence prevention standard, it has yet to take any steps to do so.
The March 2019 decision by the Occupational Safety and Health Review Commission (“OSHRC”), affirming a serious citation to an employer who had failed to prevent an incident of workplace violence that led to the death of one of its employees, is, therefore, significant. At issue in Integra Health
was whether the employer violated the General Duty Clause by failing to adequately address a workplace violence hazard (i.e., the risk of its employee being physically assaulted by a client with a history of mental illness and violent criminal behavior). Integra Health provided in-home health care and social services to patients in Florida. One of its employees was a 25-year old recent college graduate who was hired as a service coordinator, but lacked any experience in social work. During her face-to-face meetings with one of her male clients, the employee made progress notes documenting that the client made her uncomfortable and anxious. Integra Health was unsuccessful in contesting the citation, which was affirmed by the Administrative Law Judge, who found that the employer’s workplace violence policy was inadequate, the employee training was insufficient, the employer failed to monitor the employee’s specific progress notes, and the employer failed to take any action to respond to her concerns about their interactions. The employer also failed to inform its employee of the client’s medical background or criminal record for battery, aggravated battery with a deadly weapon, or aggravated assault with a weapon. On her final visit to the client’s home, the client stabbed the employee to death. The OSHRC Commissioners unanimously affirmed the citation. The deadline for review by the Court of Appeals has not yet passed.
The Integra Health
decision came just weeks after Rep. Joe Courtney (D-CT) reintroduced a bill that would require the DOL to issue a standard requiring employers in the health care and social services industries to develop and implement workplace violence prevention plans to protect nurses, physicians, social workers, emergency responders and other caregivers. House Resolution 1309 would force OSHA to impose significant requirements on employers, including, designation of an individual responsible for implementing the plan, the performance of risk assessments and identification of potential workplace violence hazards, development and implementation of incident reporting and post-incident investigation procedures, employee training, and annual evaluations of the same. The Bill seems to reflect Congress’ frustration with the DOL and appears to be aimed at accelerating the DOL’s often frustratingly slow rulemaking process. Momentum for the legislation continues to build – the bill currently has 139 co-sponsors. Meanwhile, industry groups are developing their own guidance and best practices for their members. Employers are advised to keep current on these industry initiatives. They should then develop and review their policies to ensure that workplace violence threats specific to their industry and their own workplace are being adequately addressed and train managers and employees accordingly.