OSHA Enforcement to Protect Health Care Workers From Violence

In 2018, the Cleveland Clinic seized nearly 30 000 weapons in its northeast Ohio emergency departments through metal detectors and 24/7 police staffing.¹ Its CEO and president called it “a national epidemic of violence against healthcare workers, especially in emergency departments.”¹ Homicides are the third leading cause of all occupational fatalities,² which includes an annual average of 20 health care worker homicides.³ From 2011 to 2013, health care workers suffered 15 000 to 20 000 workplace violence injuries—nearly as many as all other private industries combined.⁴ The Joint Commission’s accreditation standards include prevention of workplace violence.^5,6 However, the problem remains an escalating issue, with incidence rates of violence injuries in health care increasing every year since 2011.³ Moreover, researchers estimate that up to two thirds of violent incidents in health care go unreported.^7,8

GENERAL DUTY CLAUSE INTERPRETATION

Three recent decisions^9–11 clarify the Occupational Safety and Health Administration’s (OSHA’s) authority to protect health care workers from workplace violence. OSHA enforces workplace safety for the majority of employers in the United States, including health care facilities. No federal standard specific to violence exists for health care, only nonlegally binding OSHA-issued guidance.⁴ Only nine states have created health care workplace violence laws. The US House of Representatives passed the federal Workplace Violence Prevention for Health Care and Social Service Workers Act in 2019, but it remains pending in the US Senate. Thus, for workers not protected under workplace violence laws—including non–health care workers—these three decisions may have far-reaching effects, even though they have not received widespread attention in the public health field.

Workers are protected under law by the Occupational Safety and Health Act’s General Duty Clause, which states under 29 US Code §654(a)(1):

Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

To enforce a violation, OSHA must establish that (1) the employer failed to keep the workplace free of a hazard to workers; (2) the hazard was recognized or recognizable; (3) the hazard was causing, or likely to cause, death or serious physical harm; and (4) there were feasible means to eliminate or materially reduce the hazard. No worker has to actually be killed or injured for OSHA to find a violation; the existence of the hazard creates the violation. These violations are often OSHA’s last resort to protect workers when a more specific regulatory standard has not been violated at an unsafe workplace and are not necessarily easy to establish.

Citations of violations are appealable to an Occupational Safety and Health Review Commission (OSHRC) administrative law judge (ALJ), then to a panel of OSHRC commissioners, to the federal DC Circuit Court of Appeals, and, ultimately, to the US Supreme Court. In a matter of first impression, OSHRC in Secretary of Labor v. Integra Health Management upheld OSHA’s citation under the General Duty Clause for an act of violence by a patient–client.⁹ A caseworker was fatally stabbed by a mentally ill client who had a history of violence and noncompliance with medication. She had worked only three months with Integra and had no previous work experience in social work or with mentally ill patients. She was not required to complete Integra’s two-hour online slideshow training session on violence before visiting the client and never attended the less than 45-minute face-to-face safety training with a trainer who was “not qualified.”⁹ After her initial meeting in the client’s home, the worker raised safety concerns with her supervisor and requested that a co-worker accompany her on future visits, pursuant to Integra policy. That request was never granted.

OSHRC rejected Integra’s arguments that violent behavior cannot be reasonably foreseeable and that human “free will” to attack with violence is inherently unpredictable, as well as that the “ubiquity of violence in society” absolved Integra.⁹ The hazard was foreseeable because a “direct nexus” existed between the work and the hazard of workplace violence attributable to the types of clients, including their mental issues, medication noncompliance, and history of violence and because workers were alone with clients in their homes.⁹ OSHRC found that the violence hazard required more than Integra’s “inadequate” training and its unenforced policies.⁹

After Integra, the next violence case involved a decision by the federal DC Circuit Court of Appeals, upholding an ALJ decision finding a violation in BHC Northwest Psychiatric Hospital v. Secretary of Labor.¹⁰ BHC argued that a lack of feasible methods existed to reduce violence.¹⁰ The court found that sufficient evidence supported the ALJ’s conclusion that that BHC had an inadequately implemented workplace violence training program, which consisted of a PowerPoint presentation with no evidence of how it was provided to workers.¹⁰ Emergency alert systems relied on an inadequately distributed telephone system or walkie-talkies that staff often lacked or that frequently did not work.¹⁰ Violence debriefings required by BHC’s policies did not consistently occur or had such limited scope that they “did not meaningfully contribute to workplace safety.”¹⁰ BHC had a method to estimate patient aggression incidents, but staff were not actually required to report violent incidents.¹⁰ The court stated that if the program on paper was actually implemented, OSHA’s citation would likely be overturned.¹⁰

A third violence citation in Secretary of Labor v. UHS of Westwood Pembroke¹¹ was upheld by an ALJ and remains on appeal by the employer to the OSHRC. The psychiatric facility had a violence program, but the ALJ found that it was brief, generic, and focused on patient care and not on staff safety.¹¹ Despite the existence of the program, violent incidents continued.¹¹

These three cases are not the sole violence citations issued by OSHA. However, these decisions form ongoing jurisprudence establishing that OSHA possesses the authority to enforce against violence. This should place all employers on notice that OSHA may enforce violence prevention.

METHODS TO REDUCE HEALTH CARE VIOLENCE

Employers should have effective workplace policies and training for workers. Policies on paper alone are insufficient. Policies should incorporate ongoing hazard assessments and understand the risks at the individual level and by patient type, including illnesses, medications, and background and history. The physical environment should reduce hazards, including emergency call methods, lockdowns, and the removal of weapons from the premises. Trainings must be mandatory and conducted by qualified trainers; they cannot be merely cursory in time and quality. Industry best practices and peer-reviewed research should be consulted with input from frontline staff, including security and violence response teams.

Employers must know when workers are injured by violence to address problems. Thus, employers should encourage and require workers to report violence, including near misses. In California’s first year with a mandatory state reporting system, researchers found associations between types of facilities, ownership of facilities, and departments within facilities and the reporting of violence and police involvement.⁷ Thus, employers must understand and tailor violence programs to reflect their own worksites.

THE FUTURE OF HEALTH CARE

With increasing injuries owing to violence, will health care facilities and the public health community become leaders in reducing violence? Further applied research on antiviolence methods in collaboration with health care employers would provide insight into ways to reduce workplace violence. If we have learned anything in the face of COVID-19, it is how fragile our health care system is and how much it relies on healthy workers. In places where shortages of nurses, aides, and doctors exist, can we afford to lose workers to preventable violence?