When does workplace violence violate OSHA’s General Duty Clause?

By: May 5th, 2017 Email This Post Print This Post

It remains unclear whether the feds will follow California’s lead in implementing an occupational health and safety standard on workplace violence prevention in healthcare settings, despite a largely positive response from those who commented on OSHA’s recent request for input on the idea.

The federal standard could specify which steps employers must take to protect healthcare workers and impose fines for noncompliance. Even without the nationwide standard, however, it’s already possible for OSHA to penalize healthcare employers anywhere in the country for failing to prevent violence against doctors, nurses, and other healthcare professionals.

That possibility comes, of course, from the OSH Act’s General Duty Clause, which requires that an employer keep its workplaces “free from recognized hazards that are causing or likely to cause death or serious physical harm to [its] employees.” But what exactly does it take to support an allegation that an employer whose workers have been victimized by violence should be held accountable, to some degree?

Clarence Webster III, JD, with the firm Bradley Arant Boult Cummings LLP, addressed that question this week in a blog post, citing a directive that took effect in January. The directive guides OSHA officials on when and how to issue citations in response to workplace violence, Webster explained.

“In determining whether to initiate an inspection, the Directive sets forth a list of known risk factors, none of which would individually trigger an inspection,” Webster wrote.

These risk factors include employment in healthcare, working alone or in small numbers, late-night or early-morning shifts, working in high-crime areas, and others. If your workplace has some of these factors, there are four questions OSHA must answer in the wake of a violent incident to determine if you violated the General Duty clause:

  1. Did the employer fail to keep its workplace free of a foreseeable workplace violence hazard?
  2. Was the hazard explicitly recognized or recognized in a high-risk industry?
  3. Was the hazard causing or likely to cause death or serious physical harm?
  4. Was there a feasible and useful means by which to correct the hazard?

Answering “yes” to all four questions above–which align loosely with the four-pronged test articulated last year in a Government Accountability Office report on workplace violence prevention—would tend to support an alleged violation of the General Duty Clause. (An affirmative response to fewer than four of the above questions could still warrant a “hazard alert letter” with recommendations to improve safety.)

For any employers looking for practical steps to minimize risks, there is an 11-page list in Appendix A of the directive. It outlines engineering and administrative controls, and it provides a table with recommended applications in various healthcare settings.

Webster said one of the keys to preventing workplace violence is making sure that your employees understand that they should report potentially violent behavior, not tolerate it.

“However, when you get to the suggested engineering and administrative controls,” Webster added, “be sure to balance them against other laws governing your workplace, including state, local, and federal privacy laws and safety and building codes and standards.”

For more on the prospect of a federal OSHA standard on workplace violence prevention in healthcare, see the June edition of HCPro’s Briefings on Hospital Safety newsletter.

 

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