April 8, 2015

OSHA Warns Health Care Employers Of Workplace Violence Risks, Raising Industry Concern

OSHA Warns Health Care Employers Of Workplace Violence Risks, Raising Industry Concern

OSHA has put the health care and social service sectors on notice that it intends to enforce against workplace violence risks through potential use of the OSH Act general duty clause, telling the industries in an updated guidance that they can stay in legal compliance by proactively addressing what the agency says are “serious” concerns about violent incidents.

Industry has already objected to the guidance’s suggestion that the general duty clause, which requires employers generally to provide safe and healthful workplaces and address known hazards, could be used for workplace violence enforcement purposes in hospital and similar settings. One industry attorney says the updated guidance is not necessarily objectionable on its substantive content, but he worries it could be used as a basis by OSHA to pursue unreasonable enforcement actions.

OSHA makes reference to the general duty clause toward the front of the document, noting that pursuant to the OSH Act, employers must comply with safety and health standards and regulations issued and enforced either by OSHA or by an OSHA-approved state plan. “In addition, the Act’s General Duty Clause, Section 5(a)(1), requires employers to provide their workers with a workplace free from recognized hazards that are causing or likely to cause death or serious physical harm. In addition, Section 11(c)(1) of the Act provides that ‘No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act.'”

The agency cites high incidence of workplace violence in the sectors. “Healthcare and social service workers face significant risks of job-related violence and it is OSHA’s mission to help employers address these serious hazards,” the guidance states. The publication updates OSHA’s 1996 and 2004 voluntary guidelines for preventing workplace violence for health care and social service workers. “OSHA’s violence prevention guidelines are based on industry best practices and feedback from stakeholders, and provide recommendations for developing policies and procedures to eliminate or reduce workplace violence in a range of healthcare and social service settings,” the document says.

The new guidelines come as OSHA officials forcefully press the issue with industry. Jordan Barab, OSHA deputy assistant secretary, recently raised workplace violence concerns in an April 2 Labor Department blog. “In 2013, the Bureau of Labor Statistics reported that more than 23,000 workers suffered significant injuries from being assaulted at work,” he said. “More than 70 percent of these assaults were in the healthcare and social service settings. Healthcare and social service workers are almost four times more likely to be injured as a result of violence in the workplace than the average private sector employee. These injuries are predictable and preventable.”

The guidelines, according to OSHA, reflect variations that exist in different settings and incorporate ways to reduce the risk of violence in the workplace. “Workplace setting determines not only the types of hazards that exist, but also the measures that will be available and appropriate to reduce or eliminate workplace violence hazards.”

The guidelines are applicable in five different settings: large institutional medical facilities; residential treatment settings include institutional facilities such as nursing homes, and other long-term care facilities; non-residential treatment/service settings, including small neighborhood clinics and mental health centers; community care settings, including community-based residential facilities and group homes; and field work settings, including home health care workers or social workers who make home visits.

“Indeed, these guidelines are intended to cover a broad spectrum of workers, including those in: psychiatric facilities, hospital emergency departments, community mental health clinics, drug abuse treatment centers, pharmacies, community-care centers, and long-term care facilities,” OSHA states. “Healthcare and social service workers covered by these guidelines include: registered nurses, nurses’ aides, therapists, technicians, home healthcare workers, social workers, emergency medical care personnel, physicians, pharmacists, physicians’ assistants, nurse practitioners, and other support staff who come in contact with clients with known histories of violence.”

The agency says employers should use the guidelines to develop appropriate workplace violence prevention programs, engaging workers to ensure their perspective is recognized and their needs are incorporated into the program.

OSHA cites NIOSH data and the research agency’s definition of workplace violence as “violent acts (including physical assaults and threats of assaults) directed toward persons at work or on duty.” OSHA notes that, according to the Bureau of Labor Statistics, 27 out of the 100 fatalities in health care and social service settings that occurred in 2013 were due to assaults and violent acts. “While media attention tends to focus on reports of workplace homicides, the vast majority of workplace violence incidents result in non-fatal, yet serious injuries.”

OSHA encourages health care and social service employers to develop and implement comprehensive plans to head off dangers to workers arising from violence.

Industry representatives argue that OSHA, while perhaps taking a reasonable approach insofar as the guidelines themselves are concerned, nonetheless is raising a red flag by alluding to the general-duty obligation, which industry has long argued cannot be wielded as a substitute for specific standards.

Baruch Fellner, a former attorney for OSHA who now represents management, tells Inside OSHA Online that the updated guidelines are cause for concern from an enforcement perspective, saying “this smorgasbord of written programs, training, engineering and administrative controls, checklists, etc. is entirely familiar and largely unobjectionable on their substantive merits. The problem is that when the inevitable incident occurs, or workplace complaint is filed, or union organizing campaign is triggered, OSHA will inspect and fly speck procedures and programs that are in place, including those that cover private residences.”

Fellner, partner in Gibson, Dunn & Crutcher, says in an email that given the history of past citations, variances from OSHA’s guidelines will be “fair game for onerous” general duty clause enforcement actions, and that “if OSHA is really serious about the implementation of this fifty-page litany — chapter and verse — there will be little time and resources left over for healthcare” as a broad enforcement concern. — Christopher Cole ()


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