Our colleagues, , at Epstein Becker Green, has a post on the Health Employment and Labor blog that will be of interest to many of our readers: “Healing the Healers: Preventing Workplace Violence in Health Care Settings.”

Following is an excerpt:

On April 17, the Joint Commission—a nonprofit organization that provides accreditations to health care organizations—issued a list of seven steps hospitals should take to improve safety and reduce the risk of workplace violence perpetrated by employees, patients, and visitors. While the seven steps are advisory rather than mandatory, health care organizations risk jeopardizing their accreditation status if they fail to take appropriate action in response to episodes of workplace violence.

The Joint Commission’s alert seeks to address what it characterizes as the prevalence of workplace violence in the health care industry, citing a 2015 report from the federal Occupational Safety and Health Administration (OSHA) suggesting that approximately 75% of workplace assaults reported annually occur in health care and social service. The Joint Commission suggests that health care workplaces are particularly susceptible to workplace violence because of the daily care of patients dealing with mental health issues. …

Read the full post here.

Our colleagues, , at Epstein Becker Green, has a post on the Health Employment and Labor blog that will be of interest to many of our readers: “Workplace Violence Prevention Plans Now Mandatory for California Hospitals and Skilled Nursing Facilities.”

Following is an excerpt:

With the passage of A.B. 30, California became the first state to require all acute-care hospitals and skilled-nursing facilities to develop and implement comprehensive workplace violence prevention plans. After years of wrangling with California’s Division of Occupational Safety and Health (“Cal OSHA”), the law became effective on April 1, 2018.

This statute was conceived by Cal OSHA, in conjunction with unions such as the California Nurses Association to address the high risk of workplace injuries faced by health care workers daily. Overall, health care workers suffer the greatest number of workplace injuries, with over 650,000 individuals injured each year. Violence in the health care industry, however, is historically underreported; one survey estimated that just 19% of all violent events are reported. …

Read the full post here.

For many years, OSHA has stressed the need for enhanced workplace violence policies to protect health care and social service workers.  The agency released guidelines for workplace violence prevention in the health care and social services industries in both 1996 and 2004, recognizing that caregivers are at an increased risk of unpredictable, violent behavior from the very people whom they provide care to.  In spite of these efforts, violence in health care and social service workplaces continues to rise.  In 2013, the Bureau of Labor Statistics reported more than 23,000 serious injuries due to assault at work.  More than 70 percent of those assaults took place in health care or social service settings.  Health care and social service workers are almost four times more likely than the average private sector worker to be injured as a result of an assault.

Re-emphasizing its commitment to reducing this risk, OSHA published its revised Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers on April 2, 2015.  The revised guidelines are significantly more comprehensive than those released by the agency in the past, and they include a number of tools, such as a workplace violence prevention program checklist, to enable employers to more easily navigate and implement OSHA’s suggested strategies.

The new guidance calls for a five-part program consisting of:

  1. management commitment and worker participation—OSHA deems management responsible for controlling hazards by, among other things, urging all levels of management to become deeply involved in all aspects of the workplace violence prevention program, and worker participation should be required because workers can help identify and assess workplace hazards;
  1. worksite analysis and hazard identification—management and workers are called upon to work together to assess records, existing procedures, and operations for jobs, employee surveys, and workplace security analyses;
  1. hazard prevention and control—after the worksite analysis is complete, employers should take appropriate steps to prevent or control the identified hazards and periodically evaluate the effectiveness of the chosen controls and improve, expand, or update them, as needed;
  1. safety and health training—all workers (including contractors and temporary employees) should receive training on the workplace violence prevention program at least annually and, in particularly high-risk settings, as often as monthly or quarterly to effectively reach and inform all workers; and
  1. recordkeeping and program evaluation—OSHA logs of Work-Related Injuries and Illnesses (OSHA Form 300), worker injury reports, information regarding patients with a history of violence, and other documents reflecting trends or patterns at the workplace should be studied and the effectiveness of the workplace violence prevention program should be frequently evaluated and improved, as necessary.

Although there is no formal OSHA standard regarding workplace violence, the agency has invested significant resources into providing health care and social service employers with an all-encompassing set of guidelines to enable these employers to create high-quality workplace violence prevention programs.  OSHA has already announced that it intends to increase enforcement efforts in the health care and social services industries in the coming year. If OSHA conducts an inspection and finds that an employer’s workplace violence prevention program is lacking, the agency could issue the employer a citation under the General Duty Clause for failing to provide workers with a safe and healthy work environment.

Accordingly, health care and social service employers are well advised to review OSHA’s new guidelines and to work closely with employees to develop a program appropriate for their worksites.  Taking this step will provide critically important protection for employees, increase employee engagement in safety and health efforts, and reduce the possibility of receiving a citation for an inadequate workplace violence prevention program.

by Margaret C. Thering and Lauri F. Rasnick

Violence against women has been in the headlines lately – the reauthorization of the Violence Against Women Act is engendering vigorous debate, and as of last month, federal agencies were ordered to implement policies to assist their employees who are victims of domestic violence.  Also last month, the National Institute for Occupational Safety and Health and the Injury Control Research Center at West Virginia University published a paper entitled “Workplace Homicides Among U.S. Women: The Role of Intimate Partner Violence” in the Annals of Epidemiology, which found that from 2003 to 2008, 648 women were murdered in the workplace.  Employer liability can result from workplace violence incidents, even when committed by a non-employee.  Indeed, although the Occupational Safety and Health Administration (“OSHA”) has no specific standard addressing workplace violence hazards, OSHA has released voluntary guidelines to address these issues in various industries.  For more details, see our previous post here on the OSHA Law Update Blog: Workplace Violence Policies and Background Checks Are Essential Components of a Prevention Plan.

Given these trends, employers should review ways they can prevent domestic violence in the workplace and accommodate employees who may be victims of domestic violence.

Read more on the Employer Defense Law Blog.

By Kara M. Maciel

Sadly, workplace violence continues to be a topic that challenges many organizations.  Indeed, as the news reports continue to remind us, employees and non-employees often take out their aggression and violent acts within the workplace.  As the recent attacks at hospitals in Pittsburgh and in Washington, D.C. demonstrate, there remains a high rate of fatal and non-fatal assaults and violent acts committed within the workplace, and, in particular, within the healthcare industry.  One of the struggles that employers face is trying to prevent violent conduct by third-party non-employees who are generally beyond the control of the employer.

Employers can face significant liability as a result of workplace violence incidents, even when committed by a non-employee.  For example, although the Occupational Safety and Health Administration (“OSHA”) has no specific standard addressing workplace violence hazards, OSHA has released voluntary guidelines to address these issues in various industries.  OSHA also offers all employers guidance for preparing for and handling emergencies and for developing a workplace violence program, including the adoption of a zero-tolerance policy. In its “Guidelines for Preventing Workplace Violence for Health Care & Social Service Workers,” OSHA sets forth uniform procedures for responding to incidents and complaints, and conducting inspections in the health care industry, and provides recommendations for workplace violence prevention.

In the absence of a specific standard, OSHA can still cite employers under the catch-all “General Duty Clause” of the OSH Act.  This provision requires employers to furnish employees with a working environment free from hazards that: (a) are recognized by the employer or the employer’s industry; (b) have the potential for causing death or serious physical harm; and (c) may be abated by feasible means.  In a compliance directive for “Enforcement Procedures for Investigating or Inspecting Workplace Violence Incidents,” released late last year, OSHA outlined the procedures for using the General Duty Clause to cite employers for not adequately protecting against incidents of workplace violence.

Some recent enforcement actions include a hospital in Connecticut, which was cited for failing to provide adequate safeguards against workplace violence when employees in the psychiatric ward, emergency ward, and general medical floors were injured by violent patients.  Similarly, another OSHA inspection identified over 115 instances in which employees of a psychiatric hospital and clinic were assaulted by patients.

OHSA’s Guidelines set forth a number of recommendations that all organizations should implement to prevent workplace violence, including:

  • Create a Written Zero-Tolerance Workplace Violence Prevention Program
  • Conduct Employee Training
  • Screen Patients for Potential Violence
  • Ensure Security Personnel are Available and Trained
  • Implement System to Flag Patient’s History of Violence

A critical aspect of a prevention plan is the implementation of effective background checks of applicants and employees in order to ensure that individuals with a violent history are carefully screened.  However, employers should be mindful that several federal and state laws restrict the kind of information an employer may be able to obtain concerning an applicant’s qualifications, job abilities, trustworthiness, and propensity towards violence.

For example, a number of states prohibit most employers from considering an applicant’s arrest record if the arrest did not lead to conviction.  Further, private employers may not bar individuals from applying for or holding jobs based upon criminal convictions unless the convictions are job-related or the individual poses a direct threat to public safety or property.

Importantly, with respect to potential discrimination issues, the Equal Employment Opportunity Commission (the “EEOC”) takes the position that because the reliance on arrest and conviction records may have a disparate impact on some protected groups, such records alone cannot be used to routinely exclude persons from employment.  However, the EEOC does permit employers to rely on conduct which indicates unsuitability for a particular position as a basis for exclusion, and employers will need to show that that the exclusion is job-related and consistent with business necessity.  The EEOC is expected to issue updated guidelines with respect to criminal background checks.  As one EEOC Commissioner recently commented at a law conference, the EEOC is closely scrutinizing criminal background checks and will likely require employers to provide some type of notice or to conduct an “individualized assessment” with applicants who report criminal convictions on their application before the employer can bar them for employment.  The EEOC hopes that through this “assessment” the employer can then effectively evaluate whether an exclusion based on the conviction is job related and consistent with business necessity.  The EEOC’s revised guidelines are expected by the end of this month.

Accordingly, by being mindful of workplace violence issues and the potential for liability from OSHA and other federal agencies, employers must be prepared to implement thorough and comprehensive policies and procedures designed to prevent workplace violence.  Part and parcel of any prevention plan is a legally enforceable background check policy and a well-trained Human Resources staff to avoid running afoul of any federal or state discrimination law.

By Julia E. Loyd and Eric J. Conn

Last week, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) launched a new National Emphasis Program targeting Nursing Homes and Residential Care facilities (“Nursing Home NEP”).  In an accompanying Press Release, OSHA announced that the Nursing Home NEP aims to protect workers from safety and health hazards “common in medical industries.”  Effective upon its announcement and for a three-year period thereafter, the NEP focuses on ergonomic hazards (e.g., strains and sprains from patient  handling), exposure to bloodborne pathogens (e.g., needlestick injuries), workplace violence (e.g., assaults by patients or others), and other hazards commonly found within nursing homes and residential care facilities (e.g., exposure to hazardous chemicals or infectious diseases).

By way of background, the Nursing Home NEP is not the first of its kind.  Nearly a decade ago, in September 2002, OSHA issued a virtually identical Nursing Home NEP, which targeted the same types of employers and all of the same hazards except for workplace violence.  Today’s OSHA evaluated the need for a new health industry NEP, and reviewed 2010 data from the Bureau of Labor Statistics.  That review revealed that nursing and residential care facilities still had one of the highest DART rates of all industries.  Specifically, the DART rate for nursing and residential care was nearly three times the national average.  Reacting to this data, the Assistant Secretary of Labor for OSHA, David Michaels, declared:

“These are people who have dedicated their lives to caring for our loved ones when they are not well. It is not acceptable that they continue to get hurt at such high rates. . . .  Our new emphasis program for inspecting these facilities will strengthen protections for society’s caretakers.”

As was the case with the 2002 NEP, the new Nursing Home NEP focuses primarily on ergonomic stressors relating to resident handling, exposure to blood and other potentially infectious materials, exposure to tuberculosis, and slips, trips and falls.  This NEP also addresses workplace violence, which was not part of the 2002 NEP.

What’s most interesting about the Nursing Home NEP, especially as compared to OSHA’s other Special Emphasis Programs, is its intended heavy reliance on the General Duty Clause; i.e. the catch-all duty in the OSH Act requiring all employers to provide a workplace free from “recognized hazards that are likely to cause death or serious physical harm.”  There are no specific OSHA standards for two of the primary hazards targeted by this NEP — (1) Ergonomics; and (2) Workplace Violence — so citations related to those two hazards will have to fall under the General Duty Clause.

In determining which facilities to inspect under the Nursing Home NEP, OSHA has prepared a list of Skilled Nursing Care, Immediate Care, and Nursing and Residential Care facilities with DART rates at or above 10.0 as reported in the CY 2010 OSHA Data Initiative (some 700 sites).  Each OSHA Area Office must conduct at least three Nursing Home NEP inspections per year.  The Nursing Home NEP also continued a recent trend by mandating that all approved State Plan OSHA Programs also adopt the NEP, and also conduct at least three Nursing Home NEP inspections per year.

Although the scope of this NEP covers only nursing homes and residential care facilities, practically speaking, it will have a major impact on the healthcare industry as a whole.  The reason is, a major component of the NEPs launched under the current OSHA leadership has been extensive training of OSHA’s compliance safety and health officers (CSHOs), who conduct the NEP inspections.  The training related to the Nursing Home NEP will arm CSHOs all over the country with a better understanding of the OSHA standards and General Duty Clause application to the supposed hazards common in nursing homes.  Those hazards happen also to be the same hazards that impact hospitals, doctors’ offices, rehab centers, and other healthcare workplaces.  The same broad impact was seen in the chemical industry after OSHA developed its Petroleum Refinery PSM NEP.  OSHA suddenly had a much larger group of CSHOs who understood the complex PSM Standard, and knew what to look for in PSM covered processes.  Even before the Chemical Facilities PSM NEP launched, chemical manufacturers were already seeing a surge in PSM enforcement because of the new army of PSM-knowledgeable CSHOs borne out of the Refinery NEP.  The healthcare industry will see the same surge.

To prepare for increased scrutiny under the Nursing Home NEP, industry stakeholders should evaluate and enhance their internal programs and policies as they relate to the hazards we know OSHA will be targeting.  A good starting point would be cross-check the programs against the NEP Directive and the referenced Guidance Documents within, such as OSHA’s:

  1. Guidelines for Nursing Homes: Ergonomics for the Prevention of Musculoskeletal Disorders;
  2. Directive on Enforcement Procedures for Investigating or Inspecting Workplace Violence Incidents;
  3. Enforcement Procedures for the Occupational Exposure to Bloodborne Pathogens Standard; and
  4. Nursing Home eTool.

Likewise, employers should be sure they are prepared to properly manage an OSHA inspection.  Epstein Becker Green’s national OSHA Group prepared an OSHA Inspection Checklist to help guide employers through the steps necessary to prepare in advance for a visit from OSHA, and to effectively manage an inspection once it begins.