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.

In the last few years, OSHA has taken action to address workplace violence in health care settings, including by overhauling its Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers, and by issuing citations to health care employers with allegedly inadequate workplace violence programs. Yet OSHA has not proposed an explicit regulation applicable to workplace violence in health care and instead has relied upon the General Duty Clause when issuing citations. And as our colleagues have reported, as of April 1, 2018, California is the only state that expressly requires all health care facilities to maintain a comprehensive plan to prevent workplace violence. The Joint Commission’s recent alert now adds additional incentives for health care organizations to implement and update workplace violence prevention programs.

So what can health care organizations do to protect the workers who put themselves in harm’s way each day? According to the Joint Commission, organizations should clearly define the term “workplace violence.” Staff members should recognize that workplace violence comprises a broad range of behaviors, from verbal assaults to physical violence with or without use of weapons. Staff should be able to easily report episodes of workplace violence, and organizations should track and follow up on any reported incidents, providing support and psychological counseling to victims, witnesses, and others affected.

Once organizations begin tracking incidents, they should review and analyze the data to identify common contributing factors and use those to develop intervention strategies. These strategies may include changes to the physical environment, such as altering exit routes, improving alarm systems, adding restricted access doors, and implementing more regular security patrols, or altering work practices or administrative procedures, reducing stressors like crowding and wait times, identified as risk factors for workplace violence. Organizations should train employees on how to use de-escalation tactics, and run practice drills such as active shooter response simulations. Finally, organizations should regularly review and assess the effectiveness of their responsive strategies to recognize areas of success and ensure continuous improvement.

While these measures are unlikely to completely eliminate workplace violence in health care settings, they represent a step in the right direction toward managing the risks, thus enabling our health care workforce to focus on the business of healing. Health care employers are well-advised to consult with counsel to develop and implement effective workplace violence prevention programs to improve employee safety and morale, reduce the likelihood of receiving an OSHA citation or jeopardizing accreditation, and – in the case of California employers – comply with the law.

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.

Under the law, affected employers in the health care industry must prepare a workplace violence prevention plan that includes:

  1. Annual personnel education and training regarding workplace violence;
  2. A system for responding to and investigating violent or potentially violent incidents; and
  3. Procedures for annual assessment and evaluation of factors that could help to prevent workplace violence.

Employers must provide annual education and training to all employees at their facility who administer direct patient care, including physicians and temporary employees. This training must include, but not be limited to, information regarding:

  • Identifying potentially harmful and violent situations and appropriate responses thereto;
  • Reporting violent incidents to law enforcement officials; and
  • Resources available to employees coping with the aftermath of a violent incident, such as critical incident stress debriefing and/or employee assistance programs.

Employers’ annual assessment identifying the factors that could possibly minimize the number of incidents of workplace violence should include a review of staffing and staffing patterns; the sufficiency of security systems at the facility; job design, equipment, and facilities; and areas of high security risk including entry and exit points for employees during late-night and early-morning shifts and employee parking lot safety.

Additionally, employers must develop these workplace prevention plans with input from their employees and any applicable collective bargaining agents. Employers are also expressly prohibited from taking punitive or retaliatory action against employees for reporting violent incidents.

Employers, however, should be aware of the dichotomy between interests regulated by Cal OSHA and by the Centers for Medicare and Medicaid Services (CMS). While Cal OSHA creates rules to ensure health care workers have a safe work environment free from harm, CMS creates rules to control aggressive patients in order to protect patients’ rights.  These competing interests often create conflicting obligations for health care facilities.  With Cal OSHA designating health care as a high risk industry for workplace violence and CMS focusing heavily on patient safety and patient rights, health care facilities must carefully navigate these competing obligations to appropriately protect both their employees and their patients.

Employers with affected health care operations in California should consult counsel for assistance with the development of a legally-compliant violence prevention plan and annual training materials in light of this new regulation.

Our colleagues Patrick G. Brady and Julie Saker Schlegel, at Epstein Becker Green, have a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the health care industry: “Beyond Joint Employment: Do Companies Aid and Abet Discrimination by Conducting Background Checks on Independent Contractors?

Following is an excerpt:

Ever since the National Labor Relations Board (“NLRB”) issued its August 2015 decision in Browning-Ferris Industries of California, Inc., holding two entities may be joint employers if one exercises either direct or indirect control over the terms and conditions of the other’s employees or reserves the right to do so, the concept of joint employment has generated increased interest from plaintiffs’ attorneys, and increased concern from employers. Questions raised by the New York Court of Appeals in a recent oral argument, however, indicate that employers who engage another company’s workers on an independent contractor basis would be wise to guard against another potential form of liability, for aiding and abetting acts that violate various anti-discrimination statutes, including both the New York State (“NYSHRL”) and New York City Human Rights Laws (“NYCHRL”) and the New Jersey Law Against Discrimination (“NJLAD”).

Read the full post here.

Denise Dadika
Denise Dadika

In a matter highlighting the importance of workplace violence prevention programs, Epic Health Services, a national home health care provider, was recently issued a citation and fine by the Occupational Safety and Health Administration (“OSHA”) for failing to protect its employees from the dangers of workplace violence. The fine and citation stemmed from a complaint by one of Epic’s nurses, who alleged she was sexually assaulted by a client while providing services in the client’s home.

After an investigation, OSHA determined that the nurse was subjected to physical and sexual assault. The investigation also revealed that Epic had received numerous reports of verbal, physical and sexual assaults on employees, as well as a report of an employee forced to work in a house in which to domestic violence occurred.  In addition, OSHA concluded that the employer had no system for reporting threats or incidents of violence in the workplace.  For these reasons, OSHA cited the employer for one willful violation for failing to maintain a safe workplace under OSHA’s General Duty Clause.  A willful violation is defined by OSHA as a violation in which the employer either knowingly failed to comply with the legal requirement, purposefully disregarded the requirement or acted with indifference to employee safety.  OSHA also cited the employer for a records violation.  The citations amounted to a $98,000 fine.

OSHA’s findings highlight the importance of a workplace violence prevention program, particularly for home health care workers who are more vulnerable to workplace violence given their uncontrolled work environment. An effective workplace violence prevention program includes:  a well-disseminated policy addressing the prevention of workplace violence; an employee training program; a system for reporting all incidents of workplace violence; management commitment and employee involvement; worksite analysis and hazard identification; corrective action to address any hazards identified; and recordkeeping and program evaluation.  As we have reported in the past, OSHA has continued to stress the need for such programs, particularly in the health care industry.

We’d like to recommend an upcoming complimentary webinar, “Addressing and Responding to Workplace Violence and Active Shooter Scenarios to Protect Your Employees” (Oct. 2, 2:00 p.m. EDT), by our Epstein Becker Green colleagues Kara M. Maciel, Susan Gross Sholinsky, and Christopher M. Locke, with Daniel Hess and Lynne Cripe of The KonTerra Group, an employee assistance program provider that regularly counsels employees undergoing stressful life events that can lead to violence.

Below is their description of the event:

Violence in the workplace can range from bullying and harassment to physical attacks to fatal mass shootings. Workplace violence has unfortunately become one of the most common forms of violence that people are likely to encounter during their lives.

This informative webinar will:

  • Discuss ways of identifying the warning signs and recognizing behaviors that are precursors;
  • Summarize strategies to assist with hiring, managing and firing employees;
  • Present guidance on how to survive in the event their workplace is the scene of an active shooter scenario; and
  • Review legal consequences of failing to take appropriate steps to avoid an incident.

To learn more about it, visit Epstein Becker Green or click here for complimentary registration.

Kara M. Maciel, contributor to this blog and Member of the Firm at Epstein Becker Green, has released the “HR Guide for Responding to Natural Disasters.”  Following is an excerpt:

Natural disasters such as hurricanes, earthquakes, and tornadoes have posed unique human resource challenges for employers. While many employers are working around the clock on recovery efforts, other employers find themselves unable to function for extended periods of time because of damage or loss of utilities.

The economic effects of a natural disaster will have long-term consequences on businesses in the region.

Although no one can ever be fully prepared for such natural disasters, it is important to be aware of the federal and state laws that address these situations. This quick go-to guide can be used by employers in navigating through the legal and business implications created by events such as Hurricane Sandy. In addition, the information contained in this guide may be applicable to other disasters, such as fires, flu epidemics, and workplace violence.

Read the full advisory on the Epstein Becker Green website.

Sadly, workplace violence continues to be a topic that many organizations face, especially those in the health care industry.  Indeed, as the news reports serve to remind us all, 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 nonfatal assaults and violent acts committed within the workplace.  One of the struggles that employers face is trying to prevent violent conduct by third-party non employees that are simply beyond the control of the employer. 

 OSHA Enforcement of Workplace Violence

Employers can face significant liability as a result of workplace violence incidents.  For example, while the Occupational Safety and Health Administration (“OSHA”) has no specific standard addressing workplace violence hazards, OSHA has released voluntary guidelines to address these issues.  OSHA also offers all employers guidance on preparing for and handling emergencies and on developing a workplace violence program, including the adoption of a zero-tolerance policy. For example, 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 bases its enforcement efforts on the General Duty Clause of the Act.  This provision requires employers to furnish employees with a working environment free from hazards (a) that are recognized by the employer or industry as hazardous; (b) that have the potential for causing death or serious physical harm; and (c) that may be abated by feasible means. 

Some recent OSHA 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 Systems to Flag Patient’s History of Violence

Criminal Background Checks as a Preventative Measure

One critical aspect of a prevention plan is the implementation of effective background checks of applicants, employees, and contractors in order to ensure that individuals with a violent history are carefully screened from employment.  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 and EEOC policy guidance 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 conduct an “individualized assessment” with applicants who report criminal convictions on their applications before the employer can bar them from 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 to be released by the end of April 2012.   

Accordingly, by being mindful of workplace violence issues and the potential for liability from OSHA or 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 preventative 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.