The Occupational Safety and Health Administration (“OSHA”) has taken a special interest in workplace violence and more specifically in patient interactions in the healthcare field. Two Haynes and Boone employment lawyers attended the American Bar Association (“ABA”) Occupational Safety and Health Law Conference in March 2016. One of the panels focused entirely on “Workplace Violence in Healthcare,” addressing the advisory guidelines issued by OSHA regarding workplace violence in the healthcare setting and OSHA’s use of its General Duty Clause to fine employers and enforce its workplace violence guidance.
More on the General Duty Clause: The Occupational Safety and Health Act (the “Act”) sets forth how employers should provide a safe workplace. However, the broad General Duty Clause under section 5(1)(a) of the Act allows OSHA to cite and fine employers for failing to “furnish . . . a place of employment . . . free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.” The Act does not specifically address workplace violence, thus, OSHA has used the General Duty Clause to cite employers for a failure to address workplace violence.
OSHA’s Guidance on Workplace Violence in Healthcare: In April 2015, OSHA issued guidance (“Guidance”) regarding workplace violence in the healthcare and social services industries, which have a higher rate of workplace violence. According to the Guidance, the Bureau of Labor Statistics reported that 27 out of the 100 employee fatalities in healthcare and social service settings that occurred in 2013 were due to assaults and violent acts. While the Guidance intends to help employers prevent dangerous situations, some panelists and attendees at the OSHA ABA Conference criticized the Guidance as creating rules for employers without going through the notice and comment process of administrative rulemaking. Some argue that OSHA should attempt to promulgate a rule regarding workplace violence rather than use the General Duty Clause.
OSHA Cites Employers for Workplace Violence under the General Duty Clause: OSHA has certainly used the General Duty Clause to cite and enforce its position on workplace violence. For example, in Sec’y of Labor v. Integra Health Mgmt., Inc., OSHRC, No. 13-1124, OSHA cited a healthcare employer under the General Duty Clause after a patient with a violent history murdered an employee. OSHA claimed that the patient’s violent history presented a known hazard that was not abated by the employer. An Administrative Law Judge affirmed the citations, and the employer appealed to the Occupational Safety and Health Review Commission (“OSHRC”). The case hinged on the patient’s violent background, which was allegedly known to the employer. As a result of this case, healthcare employers should be particularly wary of situations involving patients with violent tendencies and the resulting obligation to protect the employee. In September 2015, the OSHRC requested briefing on whether the General Duty Clause was lawfully cited, which may add some clarity to this matter. The case is still pending review. Meanwhile, healthcare employers should be aware of this trending topic and how their obligations to provide a safe workplace may evolve.