Commission Ruling Adds to Pressure for National Workplace Violence Prevention Standard

By Jim Sams | April 10, 2019

A federal commission decision that an employer had a duty to protect a social services worker who was stabbed to death by a client, even though the company did not violate any specific safety standard, reinvigorated advocates who are calling for adoption of a national workplace violence prevention standard.

Arent Fox, a national employment practices law firm, said in a blog post that the March 4 decision by the Occupational Safety and Health Review Commission is “groundbreaking” and puts employers in the health care industry on notice that they must address the risk of physical assault by patients.

“Employers can also expect that OSHA will begin to cite employers in other industries for incidents of workplace violence where it is reasonably foreseeable that their employees may be subjected to violence in the course of performing their work—for example, companies that provide guards in a correctional facility,” said the blog written by Arent Fox partner Mark S. Dreux and associate Alexandra M. Romero.

The commission upheld two serious citations issued to Integra Health Management under the general duty clause of the Occupational Safety and Health Act, rejecting the employer’s argument that it could not put safeguards in place because criminal acts of violence are inherently unpredictable. In the past, an administrative lave judge had specifically rejected citations issued for injuries caused by workplace violence under the general duty clause, Dreux said during a telephone interview Tuesday.

Integra had hired a 25-year-old woman who was fresh out of college as a service coordinator in Florida for a program that seeks to provide health care to individuals, such as persons suffering mental illnesses, who tend to avoid doctor visits. In September 2012, the employee was assigned to a patient who suffered from schizophrenia and had a long history of violence. The patient attacked the employee with a knife during a visit to his home, stabbing her nine times while chasing her across his front yard.

OSHA cited Integra for exposing employees “to the hazard of being physically assaulted by members with a history of violent behavior.” Integra appealed, but the commission affirmed the citations because Integra had not taken prudent steps to protect is employees with measures such as performing background checks on patients, initiating red flags to notify employees that a patient has a criminal history or instituting a written workplace violence prevention program.

“Here there is a direct nexus between the work being performed by Integra’s employees and the alleged risk of workplace violence,” the commission said in its decision. “Integra requires its service coordinators to meet face-to-face with members, many of whom have been diagnosed with mental illness and have criminal backgrounds as well as a history of violence and volatility.”

Attorney Kevin McCormick of the Whitford, Taylor, Preston law firm in Baltimore, who defended Integra in the case, said in his view the commission stretched the law to find a safety violation when no standard was violated. He said he was especially disappointed because the two of the three commissioners who ruled against the employer were appointed by President Donald Trump.

“Even with Republicans on the OSHA Commission, there doesn’t seem to be an interest in coming up with a standard so everybody knows what you are supposed to do,” McCormick said. “They had an opportunity to make it clear that there needs to be a workplace violence standard and they punted.”

Labor advocates are hoping that the commission’s decision will help bring about a national workplace violence prevention standard. As of now, the only standard that exists is in California, which enforces federal workplace safety rules through a state-run program.

Carmen Comsti, an attorney for the California Nurses Association, said “no matter what the hospitals say, workplace violence is predictable” and nurses are often the victims. She said certain medications are known to cause violent reactions in some patients. Patients with a history of violence can be flagged so that nurses attending to them can bring another employee with them when they provide care.

Comsti said the Bureau of Labor Statistics data shows that health care workers are four times more likely to be injured by workplace violence than the general workforce.

Comsti said that the California Nurses Association and National Nurses United supports legislation that has been introduced in Congress that would create a national standard for workplace violence prevention. The House Workforce Protections Committee heard testimony on House Resolution 1309 on Feb. 27. A similar measure has been introduced in the Senate.

A survey by National Nurses United found that 5% of 286 registered nurses who responded had filed workers’ compensation claims and 9% had changed or led their job because of workplace violence in the prior year, according to testimony submitted to the House of Representatives’ Education and Labor Committee. More than half reported anxiety, fear or increased vigilance. Nevertheless, the group says that efforts to persuade OSHA to adopted a standard appear to have stalled.

“Countless acts of assault, battery, and aggression that routinely take place in health care settings demonstrate a frightening trend of increasing violence faced by healthcare workers throughout the country,” the organization said. “In addition to innumerable anecdotal and media accounts, several national surveys document the prevalence of violence committed against healthcare workers.”

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