By Brent I. Clark, Adam R. Young, Matthew A. Sloan, and Craig B. Simonsen
Seyfarth Synopsis: Fifth Circuit rules on Title VII liability concerning workplace violence in a healthcare setting involving third parties. Gardner v. CLC of Pascagoula, No. 17-60072 (5th Cir. February 6, 2019).
A recent decision from the U.S. Court of Appeals for the Fifth Circuit highlights the risks posed to employers in the healthcare and social assistance industries by uncorrected or unaddressed customer-on-employee violence.
Fifth Circuit Reverses Lower Court’s Summary Judgment Ruling
Gardner involves a nurse who alleged that an assisted living facility allowed a hostile work environment to be created by nonemployees by not preventing a resident’s repetitive harassment. The plaintiff, a Certified Nursing Assistant, “often worked with patients who were either physically combative or sexually aggressive.”
The Court explains that under 29 C.F.R. § 1604.11(e)—one of Title VII’s sexual harassment provisions— “an employer may . . . be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action.”
Gardner’s experiences with one patient at the CLC facility rose to a new, dangerous level. According to the Court, “[the patient] J.S. was an elderly resident who lived at Plaza between 2006 and 2014. He had a reputation for groping female employees and becoming physically aggressive when reprimanded. J.S. had been diagnosed with a variety of physical and mental illnesses including dementia, traumatic brain injury, personality disorder with aggressive behavior, and Parkinson’s Disease.” J.S. had a long history of violent and sexual behavior toward both patients and staff at the facility.
Gardner refused to care for J.S. again due to the continued harassment, and asked to be reassigned. Her request was denied. She ended up going to the emergency room for injuries she sustained at the hands of J.S., and did not return to work for three months. Shortly after her return, she was fired.
In reversing the district court, which had concluded that a hostile workplace did not exist, the Fifth Circuit held that the “evidence of persistent and often physical harassment by J.S. is enough to allow a jury to decide whether a reasonable caregiver on the receiving end of the harassment would have viewed it as sufficiently severe or pervasive even considering the medical condition of the harasser.”
Customer-on-Employee Violence in the OSHA Context
Federal OSHA currently enforces workplace violence via the General Duty Clause, under which OSHA requires employers to take affirmative steps to protect their employees. Significantly, and unsurprisingly, OSHA has also considered whether to commence rulemaking proceedings on a new standard for preventing workplace violence in healthcare and social assistance workplaces perpetrated by patients and clients. Prevention of Workplace Violence in Healthcare and Social Assistance, 81 Fed. Reg. 88147 (December 7, 2016).
Additionally, note also that California healthcare employers are currently regulated under the Violence Protection in Health Care standard, and are required, as of April 1, 2018, to comply with those provisions for implementing a Violence Prevention Plan and for training their employees.
Workplace violence may affect 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. In 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 4 times higher than the rate of 1.7 per 10,000 workers in the private sector overall. Individual portions of the healthcare sector have much higher rates. 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.
State and Federal OSHA has clearly been keeping an eye on this industry and these incident rates. For instance, in August 2016 we blogged about how “NIOSH Offers Free Training Program to Help Employers Address Safety Risks Faced by Home Healthcare Workers,” in December 2015 we noted that “OSHA Issues “Strategies and Tools” to “Help Prevent” Workplace Violence in the Healthcare Setting,” in July 2015 we blogged that “Healthcare Employers to Get Even More Attention from OSHA,” and in April 2015 we blogged that “OSHA Updates Workplace Violence Guidance for Protecting Healthcare and Social Service Workers.” Also, this action follows on “CA Nears Adoption of New Workplace Violence Regulations for Health Care Employers, Home Health Providers, and Emergency Responders.”
For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team or the Workplace Counseling & Solutions Team.