By Mauro Ramirez
A top priority for healthcare employers is to reduce and prevent workplace violence and maintain a safe work environment. As a result of various factors, health care employees experience nearly as many serious injuries due to workplace violence as do employees in all other industries combined, according to the Occupational Safety and Health Administration (OSHA).
OSHA, an agency of the U.S. Department of Labor charged with assuring safe and healthy working conditions, has emphasized workplace violence prevention and has previously issued guidance and resources for health care employers. The agency, however, has not issued specific occupational and safety standards or mandated that healthcare employers take particular steps.
On November 21, 2019, however, the U.S. House of Representatives voted to pass the “Workplace Violence Prevention for Health Care and Social Service Workers Act” which would direct the Secretary of Labor to issue regulatory standards for healthcare and social service employers.
The Act is currently pending before the U.S. Senate, and, if passed into law, would require healthcare employers to develop and implement a comprehensive workplace violence prevention plan as well as take various additional steps, including maintaining records and reporting statistics to the government.
Preventing Workplace Violence is a Top Priority:
Most healthcare employers maintain proactive policies and programs to prevent violent incidents and respond when incidents do occur.
According to OSHA, “From 2002 to 2013, the rate of serious workplace violence incidents (those requiring days off for an injured worker to recuperate) was more than four times greater in healthcare than in private industry on average.” According to OSHA, “Many more assaults or threats go unreported.”
OSHA notes that “[m]any factors contribute to [the] risk, including working directly with people who have a history of violence or who may be delirious or under the influence of drugs.”
The American Hospital Association (AHA) indicates that increases in violent incidents are driven, in part, by growing numbers of behavioral health patients, the continuing opioid epidemic, and reductions in funding for behavioral health treatment.
In 2015, OSHA provided health care employers with additional resources specifically aimed at this issue, including the agency’s Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers.
The Guidelines identify five “building blocks” to developing an effective workplace violence prevention program: (1) develop procedures to ensure that both management and employees are committed and involved in the creation and operation of a workplace violence prevention program; (2) conduct an analysis to identify existing or potential hazards and identify hazard prevention and control measures to reduce or eliminate the possibility of an incident; (3) take appropriate steps to prevent or control the hazards identified in the analysis; (4) include an education and training component to ensure that all employees are aware of potential hazards and how to protect themselves and their coworkers through established policies and procedures; and (5) maintain accurate recordkeeping and effective evaluation of the violence prevention program in order to determine its overall effectiveness.
The Guidelines contributed to various tools and resources available to healthcare employers to fashion programs tailored to their specific issues and needs.
The Guidelines, however, did not establish across-the-board mandated regulatory standards. Rather, like in other industries, OSHA enforces employer obligations to prevent workplace violence through the “general duty clause” which requires employers to keep their workplaces “free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.” 29 U.S.C. § 654(a)(1).
This means that, although OSHA may issue monetary citations when it finds that a healthcare employer has exposed employees to preventable workplace violence incidents, OSHA generally does not issue monetary citations for failing to take particular violence prevention steps or actions.
In 2016, OSHA explored the possibility of implementing a regulatory standard specifically designed to protect employees in the healthcare and social services industries from workplace violence. However, OSHA has not implemented specific standards to address such hazards.
Workplace Violence Prevention Act:
During the 116th Congress, Representative Joe Courtney (D-CT) filed the “Workplace Violence Prevention for Health Care and Social Service Workers Act” (H.R. 1309). The House voted to pass the Act last November, on a bipartisan basis by a margin of 251-158.
If passed by the U.S. Senate, the Act would direct OSHA to (1) adopt an interim final standard on workplace violence prevention in the healthcare and social service industries within one year of its enactment, (2) promulgate a proposed final standard within two years of enactment, and (3) issue a final standard within 42 months of enactment.
If OSHA fails to timely adopt an interim final standard, which is likely, then the provisions set forth in the Act would go into effect. In short, the provisions in the Act give teeth to the Guidelines.
For example, the Act would require covered employers to develop and implement a violence prevention plan that is tailored to address the specific conditions and potential hazards of each facility based on factors such as the services provided by, size and operations of the facility at issue. The Act indicates that such plans should be developed and implemented with assistance from and “meaningful participation” of employees and employee representatives. The Act would also require employers to provide annual training regarding the prevention plan and to provide additional training to supervisors and managers.
Employers would also be required to perform and document investigations into each incident of “workplace violence,” which the Act generally defines as “any act of violence or threat of violence,” regardless of intent, that occurs either at a covered facility or otherwise in the performance of health care or social services.
Further, the Act would require employers to maintain a “Violent Incident Log,” which contains relevant details about each incident. At the end of each year, employers would prepare an annual summary of the Violent Incident Log and post it in a conspicuous location for at least three months.
Employers would also have annual reporting obligations to the Secretary of Labor regarding the frequency and severity of any workplace violence occurring at the employer’s facility.
Finally, the Act contains an anti-retaliation provision, which would prohibit covered employers from discriminating or retaliating against any employee who reports or otherwise participates in an investigation regarding any incident, threat or concern of workplace violence.
An Ongoing Debate:
Although there exists a general consensus that the safety and well-being of healthcare employees is a top priority, there is a general debate as to whether the Act is the best manner to address the issue. Although the Guideline’s steps appear reasonable, there is no underlying research establishing that a particular, agreed upon set of policies or procedures effectively mitigates workplace violence.
The AHA, for example, has opposed the Act, noting that governmental support should focus on research to identify best practices to mitigate violence as opposed to adopting “one-size-fits-all” standards for compliance and enforcement. The AHA and others have opposed the expedited approach set out by the Act. If OSHA is unable to meet the proposed timeframe to implement an alternative, the Act’s implementation of specific regulatory terms would circumvent the customary opportunity for the public to review and comment on proposed regulations.
The Act is currently not expected to pass U.S. Senate; however, healthcare employers should continue to track its progress and developments.