By James L. Curtis, Mark A. Lies, II, Matthew A. Sloan, Adam R. Young, and Craig B. Simonsen
Seyfarth Synopsis: Recently the U.S. House of Representatives passed a bill with bipartisan support that would require the Department of Labor to promulgate an OSHA standard specifically aimed at protecting healthcare and social service workers from workplace violence.
The “Workplace Violence Prevention for Healthcare and Social Service Workers Act,” HB 1309, is the most significant step to date by the federal government to address the rise of workplace violence episodes in the healthcare and social service industries. In 2018, for example, there were 14.8 nonfatal injuries from assaults for every 10,000 full-time workers across the private health-care and social assistance industry in 2018, according to Bureau of Labor Statistics data. This was a significant increase from 2014, that rate was only 8.2 for every 10,000 full-time workers, still 4 times higher than the rate for workers in the private sector overall.
If passed by the Senate, the U.S. Secretary of Labor would have one year to implement an OSHA standard requiring employers in the healthcare and social service industries to develop and implement comprehensive workplace violence prevention plans to protect their workers from workplace violence. A new standard would provide specific regulation requirements for employers. Currently, Federal OSHA regulates workplace violence via the General Duty Clause, which broadly requires employers to take affirmative steps to protect their employees from hazards. For more information on how Federal OSHA uses the General Duty clause in healthcare and social service workplace violence context, please visit our March 2019 blog post, titled “Commission Decisions Confirm that Employers Must Take Action to Protect Employees from Workplace Violence.”
The Federal OSHA standard proposed in HR 1309 would require employers to develop a workplace violence prevention plan that would include:
- The individual responsible for implementation of the plan;
- A risk assessment for each work area or unit at the facility;
- Security controls such as security and alarm systems, adequate exit routes, monitoring systems, barrier protection, established areas for patients and clients;
- Reporting, incident response, and post-incident investigation procedures;
- Procedures for emergency response; and
- Training for employees on workplace violence hazards.
California’s state plan already has a specific standard that requires employers in the healthcare and social service industries to create and enforce workplace violence prevention plans. We previously blogged about these California regulations at “CA Nears Adoption of New Workplace Violence Regulations for Healthcare Employers, Home Health Providers, and Emergency Responders.”
The efforts of the House of Representatives track the increased interest by state and federal agencies in the prevalence of workplace violence in healthcare and social service settings over the last five years. In addition to the aforementioned California legislation, we have noted that “OSHA Issues “Strategies and Tools” to “Help Prevent” Workplace Violence in the Healthcare Setting.” We have also blogged that “OSHA Updates Workplace Violence Guidance for Protecting Healthcare and Social Service Workers.” Moreover, in 2016, Federal OSHA 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).
The House bill, backed by National Nurses United, passed with the support of a bipartisan group of representatives. However, the bill faces significant opposition from the healthcare industry and its allies in the U.S. Senate and the White House. Senate Majority Leader Mitch McConnell has pigeon-holed more than 300 pieces of legislation passed by the Democratic house, and the White House Office of Management and Budget has urged the President to oppose the bill. We will follow the legislative process closely. Irrespective of this new legislation, many healthcare employers are already developing workplace violence prevention plans. In developing an effective plan, healthcare employers should consider their history of workplace violence and consider contacting outside counsel to advise and develop a program.
For more information on this or any related topic, please contact your authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team or the Workplace Counseling & Solutions Team.