Healthcare and social service settings in OSHA's crosshairs.

AuthorWey, Sharon A.
PositionOccupational Safety and Health Administration

The Occupational Safety and Health Administration (OSHA) is stepping up its enforcement efforts with respect to workplace violence (WPV) in healthcare and social service settings. In 2013, healthcare and social service workers were almost four times more likely to be injured as a result of WPV than other types of workers. (1) Of the 100 fatalities reported in healthcare and social service settings in 2013, 27 were the result of WPV and 80 percent of the serious WPV incidents in healthcare settings were caused by patients. (2) Currently, employers in these settings find themselves in OSHA's cross hairs. This article focuses on the impact of OSHA's stepped up enforcement efforts with respect to workplace violence committed by those served in these settings.

The General Duty Clause

The Occupational Safety and Health Act, which is administered by OSHA, was passed in 1970 "[t]o assure safe and healthful working conditions for working men and women...." (3) Most employers in the private sector are covered under the act, which defines "employer" as any "person engaged in a business affecting commerce who has employees, but does not include the United States or any state or political subdivision of a [s]tate." (4) The act does not cover self-employed persons; farms that employ only immediate family members; working conditions regulated by other federal agencies; and employees of state and local governments, unless they are in one of the states operating an OSHA-approved state plan. (5) Florida does not have an OSHA-approved state plan.

Each covered employer has a general duty under the act to furnish each employee "a place of employment ... [that is] free from recognized hazards that are causing or likely to cause death or serious physical harm" and to "comply with occupational safety and health standards promulgated under this [a]ct." (6) This provision is known as the general duty clause. OSHA may cite an employer for violating this clause when no specific regulatory standard exists (e.g., an OSHA regulation regarding hazardous materials). In other words, the clause may operate as a powerful "catch-all" provision.

To establish a violation of the general duty clause, OSHA must prove the following elements: 1) that a condition or activity in the workplace presented a hazard to employees; 2) that the employer or the employer's industry recognized the hazard; 3) that the hazard caused or is likely to cause death or serious physical harm; and 4) that feasible means exist to eliminate or reduce the hazard. (7) Currently, a civil penalty of up to $70,000, but not less than $5,000, (8) may be assessed against an employer for each willful violation (9) of the general duty clause.

Because the clause contemplates workplace hazards that are not covered by specific OSHA standards, it has very broad potential applicability as an enforcement tool. One such hazard, which is not covered by OSHA standards and is currently very much in the news, is WPV. The National Institute for Occupational Safety and Health (NIOSH) defines workplace violence as "violent acts (including physical assaults and threats of assaults) directed toward persons at work or on duty." (10) OHSA has identified four types of WPV, including those committed by 1) persons who enter the workplace for a criminal purpose, such as robbery; 2) persons for whom the employer provides a service, such as patients, clients, etc.; 3) current or former employees; and 4) nonemployees who have personal relationships with employees. (11)

Updated Guidelines for Preventing WPV

WPV comes with a high price tag for employers. The obvious physical or emotional injuries to the victims of WPV can lead to less obvious morale and productivity issues, which in turn, can lead to increased employee turnover rates. (12) Also, employers may experience substantial financial costs as the result of WPV, including increased workers' compensation costs, overtime costs, and the costs associated with recruiting and hiring someone to fill an injured employee's position. (13)

In April 2015, OSHA published updated Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers. (14) The guidelines are "advisory in nature" and do not affect existing OSHA standards or create new legal obligations for employers. They reflect OSHA's current focus on the prevention of WPV in industries identified by OSHA as high risk, such as healthcare and social service settings, (15) which include hospitals, nursing homes, mental health centers, group homes, etc. (16)

The guidelines call for the development of a written WPV prevention program as part of each healthcare and social service...

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