By Julia Tape and Linda C. Schoonmaker,
Seyfarth Synopsis: Workplace violence costs employers billions of dollars per year. More importantly, these incidents can cause immense physical and psychological harms to employees. The consequences of these harms impact productivity and morale, and can lead to individuals leaving the workforce. Compared to other job sectors, professionals working in the healthcare industry experience higher rates of workplace violence. Maintaining a strong workforce in the healthcare industry is crucial for the function of our society. Recognizing this, the Texas legislature has mandated steps to be taken by Texas healthcare facilities to aid in the prevention of workplace violence.
On May 15, 2023, Texas Governor Greg Abbott signed into law S.B. 240, the Workplace Violence Prevention Act. The Act will become part of Chapter 331 of the Texas Health & Safety Code. Although the Act takes effect on September 1, 2023, facilities subject to the Act have until September 1, 2024 to comply. Under the Act, “Facilities” include home healthcare service providers, licensed hospitals and nursing facilities, ambulatory surgical centers, free standing emergency medical centers, and licensed mental hospitals.
The Act requires Facilities to establish a Workplace Violence Prevention Committee to develop a workplace violence prevention plan. To comply with the Act, a “Committee” must be composed of one registered nurse who provides direct care, one licensed physician, and one security services employee. However, a Facility is not required to have a physician on the Committee if there is not a physician on staff. The structure of these Committees allows nurses to have a more active role in helping prevent workplace violence.
In addition to developing a workplace violence prevention plan, Facilities must create workplace violence prevention policies and implement response protocols for incidents of workplace violence. To implement and inform employees about the workplace violence plan and policies, Facilities are required to have annual workplace violence prevention training.
Along with the Workplace Violence Prevention Act, the Texas Legislature recently passed H.B. 915, the Reporting Workplace Violence Act, that requires employers to “post a notice to employees of the contact information for reporting instances of violence or suspicious activity to the [Texas] Department of Safety”, and inform employees of the right to make an anonymous report. A notice must be posted in “a conspicuous place in the employer’s place of business; in sufficient locations to be convenient to all employees; and in English and Spanish, as appropriate.” This Act will become part of Chapter 104A of the Texas Labor Code and takes effect on September 1, 2023.
The Workplace Violence Prevention Plan
A Committee is responsible for developing a workplace violence prevention plan that will be implemented at the Facility. The Act requires a Committee to meet annually to review and evaluate the workplace violence prevention plan, and to report the results to the governing body of the facility.
A workplace violence prevention plan must be practice specific, and address physical safety and security concerns. Additionally, the workplace violence prevention plan should include the definition of “workplace violence” as prescribed by the Act. For providers who are part of a healthcare system, only one Committee is necessary, but the Committee should create separate workplace violence prevention plans particularized to each Facility within the system. Healthcare systems must be able to distinguish data from each Facility when reporting the results.
Healthcare providers and employees should be encouraged to provide confidential information about incidents of workplace violence to the Committee. In the event of a workplace violence incident, Facilities should establish post-incident services. Additionally, if a Facility is aware that a patient has a past history of engaging in workplace violence, a Facility must adjust patient care assignments to protect the provider who had the workplace violence encounter with the specific patient.
Individuals who report incidents of workplace violence are protected from retaliation, but there is no express remedy for employees who experience retaliation for complaining or providing information about workplace violence. Although the Act does not establish monetary penalties, a violation could impact a Facility’s licensure.
Although employers have until September 1, 2024 to comply with the Act, facilities that do not currently have a workplace violence prevention plan should take action sooner rather than later. Taking action as soon as possible will enable Facilities to have time to establish a Committee to develop a workplace violence prevention plan. If a facility has a pre-existing workplace violence prevention plan, the Committee should evaluate the existing plan to ensure it is compliant with the Act.
Policies should be clear about prohibited acts or threats that will be considered workplace violence. Employers should go beyond the Act by establishing Zero Tolerance policies. By setting clear expectations, employers can create safer working conditions for their employees, and increase morale.
Employers should mandate reporting workplace violence. In response to workplace violence incidents, employers should encourage employees to utilize Employee Assistance Programs. Facilities should have holistic response teams that include security, HR, legal, management, and psychological consultants.
It is crucial to inform employees about the workplace violence prevention plan, policies, and procedures to create safe working conditions for healthcare workers. Training on workplace violence should educate employees on how to identify early warning signs and behavioral indicators of workplace violence. Managers should be trained on how to effectively communicate the workplace violence prevention policies, and should know how to respond to incidents. For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Counseling & Solutions Team or the Workplace Policies and Handbooks Team.