Gary Visscher, Esq.
Activity on Workplace Violence Prevention
Workplace violence has long been considered an employee safety and health issue, as well as, frequently, a crime. In 1993, OSHA issued its first citation (under section 5(a)(1)) for “failing to furnish a workplace free from the serious recognized hazard of violence.” That citation was issued to the management company for an apartment complex at which a number of violent assaults on residents and employees had taken place. The citation was eventually dismissed by an Administrative Law Judge.
OSHA issued voluntary guidelines on preventing workplace violence in healthcare and social services in 1996, followed by guidelines for preventing workplace violence in late night retail establishments in 1998. A third set of OSHA-issued guidelines addresses prevention of violent acts against taxicab drivers.
Although incidents of workplace violence may affect any and every business, OSHA’s enforcement and regulatory attention has primarily turned to and focused on workplace violence against employees in health care and social services, particularly in facilities and amongst employees dealing with persons with psychiatric and mental health issues. OSHA has issued General Duty Clause citations against several providers of psychiatric and mental health care services. In March 2019, the Review Commission, in the only workplace violence case considered by the Commission thus far, upheld a General Duty Clause citation issued to Integra Health Management, after one of its employees was killed by a client while the employee was making a home visit of the client. At least two other General Duty Clause citations for workplace violence against employees of psychiatric hospitals/social service agencies have been upheld by Commission ALJs.
The most recent decision affirming a citation was issued in early May by Commission ALJ Dennis Phillips, in Premier Behaviorial Health Solutions of Florida and UHS of Delaware. The two companies operate and manage Suncoast Behaviorial Health Center, a Florida acute psychiatric facility. According to a Department of Labor press release, testimony at the hearing showed “at least 55 incidents of patients attacking staff occurred” at the facility. The ALJ decision may be appealed to the full Commission; if it is not appealed/directed for review it becomes a final order 40 days after the ALJ decision.
Action has also taken place on legislation to require OSHA to issue a standard on preventing workplace violence in health care and social services. The U.S. House of Representatives passed H.R. 1195 on April 16. The bill passed with support of all House Democrats and 38 Republicans, and with the support of the Biden Administration. Although similar legislation has passed the House in the past, it has not passed the Senate. The change in administration and the number of Republican votes in the House may change the outcome this year.
The legislation would require OSHA to issue an interim final rule within one year, and require employers covered by the standard to implement a workplace violation prevention program, including training employees and other measure to prevent violent incidents. Several states, including California, currently have adopted state standards in the absence of a federal standard. The legislation also addresses one of the issues that has been raised with regard to OSHA’s adoption of a national standard through regular rulemaking: the fact that an OSHA standard would not cover public sector employers in states under federal OSHA enforcement jurisdiction (although federal OSHA does not cover public sector employers, the public sector is covered in states that have their own OSHA enforcement programs). Under the bill, public hospitals and service providers in federal OSHA jurisdiction states would be required to comply with the OSHA standard as a condition of receiving and participating in the Medicare program.