On December 7, 2016, the Federal Occupational Safety and Health Administration (OSHA) published a request for information in support of a new standard on workplace violence in the healthcare and social assistance settings (Prevention of Workplace Violence in Healthcare and Social Assistance, 81 Fed. Reg. 88147). Currently, the agency does not have a specific standard that regulates how employers must protect employees from workplace violence. Rather, OSHA currently addresses workplace violence hazards through the general duty clause, under which the agency requires employers to take affirmative steps to protect their employees from “recognized hazards.”
However, because there is no specific workplace violence standard in place, it is difficult for OSHA to mandate any specific workplace violence policies or procedures and enforcement cases for failure to protect employees from reasonably anticipated instances of workplace violence are rare. In OSHA’s view, this is especially problematic in the healthcare industry due to the comparatively high instances of workplace violence and serious, sometimes even fatal, injuries that occur due to workplace violence. The agency believes that through advanced planning and employee training, instances of workplace violence in healthcare settings can be greatly reduced and hopes to accomplish this goal through this new rulemaking.
Workplace violence affects numerous healthcare and social assistance workplaces, including psychiatric facilities, hospital emergency departments, community mental health clinics, treatment clinics for substance abuse disorders, pharmacies, community-care facilities, residential facilities and long-term care facilities. Professions affected by the proposed rulemaking include physicians, registered nurses, pharmacists, nurse practitioners, physicians' assistants, nurses' aides, therapists, technicians, public health nurses, home healthcare workers, social and welfare workers, security personnel, maintenance personnel, and emergency medical care personnel.
According to OSHA, workers in the Health Care and Social Assistance sector (NAICS 62) face a substantially increased risk of injury due to workplace violence. According to 2014 data from the Bureau of Labor Statistics' (BLS) Survey of Occupational Injuries and Illnesses (SOII), workers in this sector experienced workplace-violence-related injuries at an estimated incidence rate of 8.2 per 10,000 full time workers, over four times higher than the rate of 1.7 per 10,000 workers in the private sector overall. Individual positions in the healthcare sector have even higher rates. For example, psychiatric hospitals have incidence rates over 64 times higher than private industry as a whole, and nursing and residential care facilities have rates 11 times higher than those for private industry as a whole. In 2014, 79 percent of serious violent incidents reported by employers in healthcare and social assistance settings were caused by interactions with patients.
OSHA’s new rulemaking is consistent with the agency’s past initiatives in this sector. For instance, NIOSH offers free training program to help employers address safety risks faced by home healthcare workers. OSHA has previously issued “Strategies and Tools” to help prevent workplace violence in the healthcare setting, and in 2015, OSHA updated its workplace violence guidance for protecting healthcare and social service workers. This action also follows on California OSHA’s (Cal-OSHA) recent adoption of new workplace violence regulations for healthcare employers, home health providers, and emergency responders which will become effective on April 1, 2017. The new Cal-OSHA regulation is very broad and requires healthcare employers to conduct a comprehensive hazard assessment and implement a written workplace violence prevention plan to protect employees from workplace violence.
With the Trump administration settling in, it is unclear exactly what will become of this new workplace violence rulemaking. The career staffers at OSHA view this as an important and much needed regulation to protect an every growing industry, and they appear to favor a regulation along the lines of the new Cal-OSHA regulation. However, President Trump has made his dislike for new regulations clear, and the new Assistant Secretary of Labor for OSHA, whomever that may be, could well put the brakes on the whole rulemaking process. In that event, OSHA would have no choice but to continue to address workplace violence through the general duty clause, which is, at best, uneven and provides little guidance to industry on how to meet its legal obligations.
For anyone interested in participating in the workplace violence rulemaking process, comments on the RFI for OSHA Docket No. OSHA–2016–0014 are due by April 6, 2017.
About the Author: James L. Curtis is a partner at the law firm Seyfarth Shaw LLP, concentrating his practice in environmental, safety and health law. Reach him at (312) 460-5815 or at [email protected].
