By John C. Ivins, Jr.
The Occupational Safety and Health Administration (OSHA) is expanding its enforcement resources to address the increasing problem of workplace violence occurring in healthcare settings – particularly in hospitals and nursing homes. Earlier this year, OSHA published updated Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers, citing troubling statistics about such increased incidents. This was followed in late June by a Department of Labor (DOL) announcement that OSHA would be expanding enforcement to ensure compliance.
Healthcare providers must become familiar with these Guidelines and take immediate steps to avoid any adverse action by OSHA.
Incidents of Healthcare Workplace Violence Continue To Rise
Citing data that confirms this is an increasing problem, the Guidelines specifically point to risks and hazards arising at hospitals, long-term care facilities, non-residential clinics, group homes and in certain home health settings. Workplace violence is, however, occurring across the complete spectrum of healthcare providers, as illustrated by just a few examples occurring this year:
- A cardiologist who was shot and killed on the campus of a Boston hospital by an attacker who was unhappy with the care provided to his mother;
- A mental health nurse in a Port Orchard, Wash. inpatient unit who was choked to unconsciousness by a patient who became angry after being told he could not leave a phone message for the doctor;
- An office staff worker at a psychiatrist’s office in New York City who was stabbed by a disgruntled patient fleeing the Midtown office building; and
- An ER nurse in a Westchester, Pa. hospital who was hit in the face with a clipboard by a patient who was angered at being told she was being discharged without a prescription for Percocet.
OSHA Guidelines Require a Workplace Violence Assessment and Prevention Plan
Healthcare employers of every size should review the Guidelines as well as OSHA’s enforcement manual, Enforcement Procedures for Investigating or Inspecting Workplace Violence Incidents (Directive No. CPL 02-01-052)(09/08/11), to better understand what is required and what OSHA inspectors are evaluating. Among other things, the Guidelines’ recommendations for any workplace violence assessment/plan include: (a) management commitment and worker/employee participation; (b) worksite analysis and hazard identification; (c) identification of controls to eliminate or reduce hazards; (d) safety and training for all personnel; and (e) record keeping and evaluation.
OSHA’s “General Duty Clause” Provides the Basis for Enforcement
While the Guidelines specifically state that they are only “advisory in nature” and that they do not constitute standards or regulations, they are still enforceable by OSHA pursuant to Section 5(a)(1) of the Occupational Safety and Health Act, which requires all employers to provide their employees “with a place of employment [which is] free from recognized hazards that are causing or are likely to cause death or serious physical harm” (referred to as the “General Duty Clause”). To establish a violation under the General Duty Clause, OSHA must show that (a) the employer failed to keep the workplace free of a recognized hazard that was causing or likely to cause death or serious physical harm; and (b) there was a feasible and useful method to address it.
An OSHA inspector has a number of different compliance/enforcement options available following an inspection. These include:
- Finding no violation;
- Issuing a Hazard Alert Letter (where OSHA determines that insufficient measures have been employed to protect workers while concluding that such insufficiencies do not rise to the level of a General Duty Clause violation, but requires that certain compliance steps be implemented); or
- Issuing a citation (which is often accompanied by a fine and various going forward compliance requirements).
Addressing an OSHA inspection can be time-consuming and costly due to fines and professional fees lost office productivity and ongoing governmental compliance oversight. Efforts should be made, with the assistance of experienced healthcare counsel, to take the necessary steps now to ensure compliance with the Guidelines, thereby avoiding compliance issues with OSHA and reducing the risk of workplace violence.
John C. Ivins, Jr. is a partner and leader of the Healthcare Practice at Hirschler Fleischer (Richmond, Va.). Ivins routinely represents hospitals and healthcare systems, advising on various operational, compliance and staffing issues, including peer review, credentialing and handling Fair Hearings. He also represents physicians and medical practices on a variety of privacy, operational and licensing matters. He may be reached at (804) 771-9587 or by email at [email protected].