October 21, 2015

Workplace Violence Case Tests OSHA Use Of Guidance In General-Duty Citations

An enforcement case before the Occupational Safety and Health Review Commission (OSHRC) will explore to an unusual extent the limits of OSHA using guidance documents as a legal basis for issuing penalties in circumstances like workplace violence where no specific standard applies, potentially affecting use of the OSH Act general duty clause.

Commissioners in a rare step have asked legal experts to weigh in specifically on OSHA’s use of guidance to enforce policy on prevention of workplace violence, as a health care employer challenges the agency’s citation under the statute’s broad Section 5(a)(1) requirement to provide workplaces free of recognized hazards.

Interested parties have until nearly the end of this month to submit first briefs on several questions, including the effect of OSHA’s guidance for health care and social service employers on preventing workplace violence. “It could have huge, huge ramifications,” one legal source tells Inside OSHA Online.

The review commission’s request for legal input comes in a Sept. 18 briefing notice following OSHRC’s direction for review in Secretary of Labor v. Integra Health Management Inc., which OSHA cited under the general duty clause after the fatal stabbing in Florida of a health service coordinator by an insurance company’s client, whom the parties stipulated was mentally ill. Integra’s health service coordinators are responsible for mental and physical health assessments on behalf of insurers, and for coordinating services.

The company challenged an OSHA general duty citation after the incident, which was upheld on review by an administrative law judge. Integra then sought discretionary review by the commission, for which the case was directed. There is no clear timetable for a review commission ruling, but the independent agency gave parties 40 days after the briefing notice to submit amici curiae, or friend of the court, briefs.

OSHRC asks the parties and interested amici to respond to these issues:

  1. “Does the general duty clause apply to the condition as alleged by the Secretary — the workplace violence hazard of ‘[Respondent’s employees] being physically assaulted by [Respondent’s clients (known as ‘members’)]’ alleged to have ‘a history of violent behavior’?”
  2. “If so, did the Secretary establish that Respondent or its industry recognized the hazard and that a feasible and effective means of abatement existed to materially reduce the hazard?”
  3. “In addition, the parties may address the effect, if any, of OSHA’s Guidance for Preventing Workplace Violence for Healthcare and Social Service Workers.”

OSHA’s citation against Integra invokes issues surrounding federal guidelines to prevent violence at work and to guide employers in what the agency sees as their broad legal obligations. In that respect the implications of the case review go beyond workplace violence, touching on even larger issues of whether guidance can be interpreted as binding, depending on the circumstances, and how far OSHA can go in wielding Section 5(a)(1) absent codified regulations.

OSHA issued the health care employer guidance on workplace violence this spring, saying 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. Industry looked at the guidelines with askance, however, particularly the suggestion that it could bolster general duty citations, and the Integra Health Management case could be the first high-profile matter to test the legal arguments on either side.

A management-side attorney with a specialization in health care-related OSHA issues says the review commission clearly intends to weigh in on the exercise of Section 5(a)(1). “I think this is OSHRC’s way of relaying their opinions about the liberal use of the general duty clause (and) how specific you need to be in describing the hazards,” says Valerie Butera of Epstein Becker Green. The commission also seems to express a willingness to analyze the legal issues of using guidance effectively as a standard when it comes to general-duty enforcement, she says. “OSHA has been acting as though it is for quite some time now.”

“If the commission finds a way to hold that these guidances cannot be relied upon in issuing citations, OSHA’s going to be in a mess of trouble,” she says, particularly considering that OSHA has appeared more inclined in recent years to invoke the general duty clause in touchy areas like workplace violence.

Most important to the regulated community is to have parameters for use of Section 5(a)(1) so that potential citations are more predictable, and that could be borne out by OSHRC’s eventual decision, according to Butera. “Right now it’s kind of Wild West. The general duty clause was not used this liberally before this administration,” she says. “I think that this briefing notice is something I would be concerned about if I were OSHA.”

The pivotal OSHRC review comes as federal OSHA works to compel employer attention to the risks of workplace violence, but also as state plan states, with California at the forefront, advance specific regulatory requirements tacking the issue.

Cal/OSHA is poised to release a draft standard for public review — by late November or early December, according to one informed source — that would address the risks of violence in health care settings. In the case of Cal/OSHA the issuance of a standard follows statute; California lawmakers last year passed a new mandate for a state standard which is supposed to be finalized by next June. That would put the state’s OSHA program far ahead of federal OSHA in terms of specific regulation on workplace violence that inspectors can cite. California’s effort comes on top of other regulations mandated by state law and tailored to the health care sector, including infectious disease safeguards and safe patient handling.

Federal OSHA currently has no comprehensive regulations on any of those issues, though it has commenced a rulemaking effort on infectious diseases in health care.

But federal inspectors have been targeting workplace violence in the absence of a standard, according to one union health and safety staffer, who says OSHA seems to be laying the groundwork for legally sound enforcement actions. “We’ve had probably half a dozen cases with workplace violence at facilities we represent where OSHA’s actually done good citations,” concentrated mostly in New York and New England, the source says.

OSHA has also made inroads by negotiating noteworthy corporate-wide settlements, like it did recently with the provider of health care services at the Rikers Island correctional facility, the source points out. “It’s a good example where OSHA was actually able to do something to deal with a really violent situation.”

The union staffer agrees that the conclusions that review commissioners reach in the Integra Health Management case could deeply affect OSHA’s current approach to encouraging and in some cases forcing employers to confront the risks, and says “if OSHA’s not allowed to go after those kinds of cases, or that kind of hazard, that’s certainly a problem in trying to deal with workplace violence.”

Organized labor at the same time believes regulatory actions like those in California may eventually put pressure on OSHA to pursue some kind of regulatory initiative, the source adds. “It’s what we should see at the federal level if the world were a better place.” — Christopher Cole ()


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