By Christopher W. Kelleher, Rashal G. Baz, James L. Curtis, and Brent I. Clark,

Seyfarth Synopsis: On October 11, 2017, the Chicago City Council passed an ordinance that will require Chicago hotels to provide certain staff with “panic buttons” and develop enhanced anti-sexual harassment policies.

In an effort to protect hotel employees from sexual harassment and other guest-misconduct, Chicago has passed the Hotel Workers Sexual Harassment Ordinance, which requires Chicago hotels to provide employees who work alone in guest rooms or bathrooms with “a panic button or notification device” which can be used to call for help if the employee “reasonably believes that an ongoing crime, sexual harassment, sexual assault or other emergency is occurring in the employee’s presence.”

According to the Ordinance, “a panic button or notification device” is a portable device designed to be used in emergency situations to summon hotel security or other appropriate hotel staff to the employee’s location. The Ordinance does not require hotels to use a specific type of device, as long as it warns proper hotel personnel and it comes at no cost to the employee.

The Ordinance also requires hotels to develop and distribute a written policy to protect employees against sexual harassment. Specifically, the policy must: (1) encourage employees to promptly report sexual misconduct by guests; (2) describe procedures for handling the reported misconduct; (3) instruct the complaining employee to stop work and leave the dangerous area; (4) offer the employee temporary work assignments; (5) provide the employee with paid time off to make a complaint or testify as a witness; (6) inform employees of additional protections; and (7) include an anti-retaliation provision. The policy must be conspicuously posted in English, Spanish, and Polish.

The Ordinance authorizes fines of $250 – $500 for each day a violation continues, and two or more violations within any 12-month period may result in license suspension or revocation. Hotels will have until July 1, 2018 to implement “panic button” systems, but must comply with the Ordinance’s other provisions (i.e. develop and distribute an updated anti-sexual harassment policy) within 60 days of the law’s publication, which we can expect any day now.

Notably, the Occupational Safety and Health Administration (OSHA) uses the General Duty Clause  to enforce workplace issues against employers.  OSHA can rely on industry practices to support a claim that a “recognized hazard” exists. It is possible that OSHA will use the new Ordinance and employer compliance in Chicago as a basis to require that other hotel employers should also have “panic buttons.”

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Policies and Handbooks Team or the Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. ClarkJoshua M. Henderson, and Craig B. Simonsen

Seyfarth Synopsis: The California Division of Occupational Safety & Health Standards Board approved last week its regulations on Workplace Violence Prevention in Health Care.

The California Division of Occupational Safety & Health (Cal/OSHA) Standards Board approved last week its regulations on Workplace Violence Prevention in Health Care, CCR Title 8, Section 3342. The Notice of Addition of Documents to California Code of Regulations was signed September 27, 2016, and the rule was passed by the Board on October 21, 2016. The draft has now been submitted to the Office of Administrative Law for review and approval (or not). If approved the rules will become final and will be submitted to the Secretary of State for promulgation.

We had blogged in 2015 about the Cal/OSHA draft proposed regulation that would require health-care employers, home health and hospice providers, and emergency responders to develop workplace violence-prevention plans, train their employees, and keep records related to workplace violence incidents. If adopted, the regulations also require certain hospitals to report violent incidents that resulted in an injury, involved the use of a firearm or other dangerous weapon, or present an urgent or emergent threat to the welfare, health or safety within 24 hours and all incidents within 72 hours.

Based on the definition of “reportable workplace violence incident” employers are required to report incidents that did not result in an injury if there was a high likelihood that injury, psychological trauma, or stress would result, or the incident involved the use of a firearm or other dangerous weapon. The regulations further require employers to take immediate corrective action where a hazard was imminent and take measures to protect employees from identified serious workplace violence hazards within seven days of the discovery of the hazard. Additionally, employers are required to maintain a “Violent Incident Log.”

The rule follows the enactment of SB 1299, requiring Cal/OSHA to have a workplace violence prevention regulation for healthcare workers promulgated by July 1, 2016. Yet, California was not alone. The regulation comes as emphasis on workplace violence increases in both federal and state plan OSHA jurisdictions. For instance, in April 2015 we blogged that “OSHA Updates Workplace Violence Guidance for Protecting Healthcare and Social Service Workers”, in July 2015 we blogged that “Healthcare Employers to Get Even More Attention from OSHA”, in December 2015 “OSHA Issues “Strategies and Tools” to “Help Prevent” Workplace Violence in the Healthcare Setting”, and in August 2016 we blogged about how “NIOSH Offers Free Training Program to Help Employers Address Safety Risks Faced by Home Healthcare Workers”.

As part of the employer’s Injury and Illness Prevention Program (IIPP), under section 3342(c), the final rules require a “Workplace Violence Prevention Plan” (Plan) that is “in effect at all times in every unit, service, and operation. The Plan shall be in writing, shall be specific to the hazards and corrective measures for the unit, service, or operation, and shall be available to employees at all times. The written Plan may be incorporated into the written IIPP or maintained as a separate document”. In addition, the final rules do incorporate the “Violent Incident Log” provisions. The rules require that the “employer shall record information in a violent incident log about every incident, post-incident response, and workplace violence injury investigation”.

Covered employers in California should take care to evaluate their workplaces for potential workplace violence hazards and institute–and enforce–policies concerning training and reporting.  Certainly employers in California, or with a business presence in California, there is a heightened need to evaluate compliance with these new rules. In addition to modified policies, procedures, and training systems, these new rules may require substantial changes including physical facility changes and staffing increases.

Note that with or without these new rules, in California or out, an administrative enforcement action in the event of a workplace violence incident or related civil liability is a possibility. The new rules also incorporate substantial training, reporting, and recordkeeping provisions. Federal OSHA enforces workplace violence under the General Duty Clause. We would not be surprised to see the Federal OSHA referring to the California Rule in its citations in the future.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team or the Workplace Policies and Handbooks Team.

 

 

By Adam R. Young, Kylie Byron, and Craig B. Simonsen

shutterstock_178475264Seyfarth Synopsis: NIOSH releases a comprehensive training curriculum that home healthcare employers can use to minimize safety risks and prevent OSHA citations.

We had blogged previously about OSHA’s “Strategies and Tools” to “Help Prevent” Workplace Violence in the Healthcare Setting. Now the National Institute for Occupational Safety and Health (NIOSH) has recently announced the availability of a “free” web-based training curriculum for home healthcare agencies and workers.

NIOSH indicates in its press release that the curriculum is intended to help employers communicate recognized hazards encountered in homecare workplaces, explain safety concerns, as well as provide “practical solutions to manage risks and improve safety.” The curriculum, Caring for Yourself While Caring for Others, is available in both English and Spanish. It comprises seven “flexible modules” that “allow for customization to meet the individual training needs of home healthcare workers.”

Each training module includes a trainer’s guide, customizable PowerPoint slides, and participant handouts. The modules include:

  • Introduction to Homecare Health and Safety;
  • Reducing Strains, Sprains and Falls;
  • Reducing Risk from Environmental Exposure;
  • Reducing Exposure to Bloodborne and Other Infectious Diseases;
  • Staying Safe When Working With Clients With Dementia;
  • Setting Healthy and Safe Boundaries to Reduce Stress; and
  • Safely Handling Threatening Behavior When Providing Homecare.”

In addition to the modules, the NIOSH curriculum comes with a Homecare Workers’ Handbook that is an “easy-to-read overview of some of the topics covered in this course as well as topics that are not covered” which “should be provided to all participants.” The Handbook includes safety checklists and to-do lists that can be used by home healthcare employers and agencies, their workers, and their clients, in order to help keep these workers injury free.

Employers and agencies in the home healthcare and social service industries can use these NIOSH materials to develop their own employee safety and training programs, or to update their existing programs as appropriate. At a minimum, employers who have a written program in place may wish to make sure that they covered all of the topics highlighted in these NIOSH materials. Coordinating employer written materials with the NIOSH curriculum may improve employee safety and reduce the likelihood of workplace incidents. Moreover, compliance with the NIOSH training recommendations also may reduce the employer’s liability for an OSHA citation, should OSHA conduct an onsite inspection.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Policies and Handbooks Team or OSHA Compliance, Enforcement & Litigation Team.

By James L. Curtis and Craig B. Simonsen

Seyfarth Synopsis: DHS’s recommendations for active shooter prevention and preparedness is only one piece of an effective workplace violence prevention program. Employers should assess their workplaces and develop comprehensive workplace violence prevention programs and training.

With the wave of violence that has gripped the nation this summer, many clients are again asking how best to protect their employees. We had blogged previously about “Workplace Violence Prevention: DHS Promotes “Active Shooter Preparedness” Programs – Is Your Company Ready?” This blog includes an update on this important topic.

The Bureau of Labor Statistics has said in a news release that the number of workplace homicides in 2014 (409) was about the same as the total in 2013. Among the workplace homicides in which women were the victims, the greatest share of assailants were relatives or domestic partners (32 percent of those homicides). In workplace homicides involving men, robbers were the most common type of assailant (33 percent).

The National Institute for Occupational Safety and Health (NIOSH) reports that the magnitude of workplace violence in the U.S. is measured with fatal and nonfatal statistics from several sources. The Bureau of Labor Statistics’ Census of Fatal Occupational Injuries (CFOI) reported 14,770 workplace homicide victims between 1992 and 2012. From 2003 to 2012 over half of the workplace homicides occurred within three occupation classifications: sales and related occupations (28%), protective service occupations (17%), and transportation and material moving occupations (13%).

In response to workplace violence events the DHS had issued its “Active Shooter Preparedness Program.” The Program was intended to enhance preparedness through a “whole community” approach by providing training, products, and resources to a broad range of stakeholders on issues such as “active shooter awareness, incident response, and workplace violence.” The DHS has found that in many cases, “there is no pattern or method to the selection of victims by an active shooter, and these situations are, by their very nature, unpredictable and evolve quickly.”

In key Active Shooter Preparedness research, it was found that in 160 Active Shooter incidents that occurred between 2000 and 2013, the incidents occurred most frequently in areas of commerce (46 %), followed by educational environments (24 %), and government properties (10 %). The materials indicate that an effective active shooter plan will include the following:

  • Proactive steps that can be taken by facility tenants to identify individuals who may be on a trajectory to commit a violent act.
  • A preferred method for reporting active shooter incidents, including informing all those at the facility or who may be entering the facility.
  • How to neutralize the threat and achieve life safety objectives.
  • Evacuation, shelter-in-place, hide, and lockdown policies and procedures for individual offices and buildings.
  • Integration with the facility incident commander and the external incident commander.
  • Information concerning local area emergency response agencies and hospitals (i.e., name, telephone number, and distance from the location), including internal phone numbers and contacts.
  • How operations will be restored.

DHS suggests that after company or facility specific policy and procedures, including an active shooter plan are finalized, training and exercises should occur, with drills and exercises at least annually.

As we noted in our previous blog, employers should review the DHS’s recommendations for active shooter prevention and preparedness and update their policies and practices as appropriate. Of course, active shooter training and policies are only one piece of an effective workplace violence prevention program.  All employers should assess their workplaces and develop comprehensive workplace violence prevention programs and training.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

 

 

 

By Adam R. Young and Craig B. Simonsen

Violence, often involving firearms, is an increasingly common occurrence in the 21st century workplace.  The Federal Bureau of Investigation notes that even though homicide is “the most publicized form of violence in the workplace, it is not the most common.”

The FBI defines workplace violence as “any physical assault, threatening behavior or verbal abuse occurring in the work setting.” While some types of these acts “may not be interpreted immediately as violence … many people will witness them in their lifetimes.”

The FBI warns that it is “vital that employers create a sense of hypervigilance in their employees by providing formal training in workplace violence prevention.” To help employers prevent workplace violence, the U.S. Department of Homeland Security (DHS) has recently released an “Active Shooter Preparedness” website intended to make training and other resources available to employers.

Of particular interest are the Active Shooter Webinar materials, including a ninety minute Webinar that the DHS has provided for the private and public sector to “understand the importance of developing an emergency response plan and the need to train employees on how to respond if confronted with an active shooter.” Emphasis added. These Webinar materials include specific tools designed to aid employers in creating and updating policies and procedures to prevent and respond to active shooter scenarios.

Issues covered in the materials include the following:

  • Profile of an active shooter;
  • Responding to an active shooter or other workplace violence situation;
  • Training for an active shooter situation and creating an emergency action plan; and
  • Tips for recognizing signs of potential workplace violence.

The materials include a desk reference guide, a reference poster, and a pocket-size reference card.

By utilizing these materials, employers may help prevent harmful workplace violence incidents. Conflict resolution training and employee assistance programs can help reduce the likelihood of workplace violence and active shooter scenarios.  Employee training and emergency preparedness can help minimize the harm from incidents and ensure that employees safely exit the workplace.

These measures also will help insulate employers from negligence claims alleging a failure to maintain a safe work environment for employees. Consider also that under the Occupational Safety and Health Act, employers must protect employees from known hazards in the workplace.  Employers who fail to implement measures to prevent workplace violence may face citations and increasingly aggressive OSHA enforcement actions.

Accordingly, employers should review DHS’s recommendations for active shooter prevention and preparedness and update their policies and practices as appropriate. Of course, active shooter training and policies are only one piece of an effective workplace violence prevention program.  All employers should assess their workplaces and develop comprehensive workplace violence prevention programs and training.

For further information, please contact the author(s), or your Seyfarth attorney.

 

 

 

bogBy Mark A. Lies, II and Craig B. Simonsen

Employers today can find themselves in a seemingly untenable dilemma when they have violence threaten to invade their workplaces.  Two recent cases illustrate the competing liabilities that employers face in their decision-making as to how to respond to workplace violence.

In one case, decided by the United States Court of Appeals for the Ninth Circuit, the employer, a superalloys casting company, chose to fire an openly hostile employee making death threats to avoid potential injury to its employees, and face the prospect of costly litigation including an Americans with Disabilities Act (ADA) lawsuit.

In the other case, decided by an Occupational Safety and Health Review Commission (OSHRC) Administrative Law Judge, a healthcare company did not perceive or protect a social service coordinator, who was tragically fatally stabbed outside the client’s home, from the hazard of workplace violence.

Employer Response to Violence Upheld

In the first case the plaintiff appealed from the Federal District Court’s grant of summary judgment in favor of his former employer on his claim of discrimination in violation of Oregon disability law. Mayo v, PCC Structurals, Inc., No. 13-35643 (9th Cir. July 28, 2015) (Mayo).

The District Court concluded that because the plaintiff, Timothy Mayo, had threatened to kill his co-workers, including his supervisor, he was not a “qualified individual” under section 659A.112 of the Oregon Revised Statutes, which is Oregon’s counterpart to the Americans with Disabilities Act (ADA). The District Court indicated that in following the decisions of numerous other Circuit Courts, Mayo was no longer a “qualified individual” once he made his “violent threats.” Because Mayo was not a qualified individual in the eyes of the court, he was not “entitled to protection under the ADA and Oregon’s disability discrimination statute.”

In its discussion affirming the lower court decision, the Circuit Court of Appeals found that even if the plaintiff were disabled (which it assumed was true for the appeal), “he cannot show that he was qualified at the time of his discharge. An essential function of almost every job is the ability to appropriately handle stress and interact with others.” For instance, in a frightening recitation of the court record, the plaintiff told a co-worker that he “‘fe[lt] like coming down [to work] with a shotgun an[d] blowing off’ the heads of the supervisor and another manager. The co-worker need not worry, Mayo explained, because she would not be working the shift when the killing would occur.”

After these statements were reported to company management a timely investigation was conducted. Written statements were obtained from co-employees regarding the threats. When the plaintiff was asked by management if he planned to carry out these threats, the plaintiff responded that “he couldn’t guarantee he wouldn’t do that.” The company management immediately suspended the plaintiff’s employment, barred him from company property, and notified the police.

After the plaintiff’s suspension and being interviewed by the police, he was voluntarily admitted to the hospital because he was deemed to pose a danger to himself and to others. He remained in custody for six days, and then took a leave under the Oregon Family Leave Act (OFLA) and the Family and Medical Leave Act (FMLA) for two months. Near the end of his leave period, a treating psychologist cleared him to return to work, writing that he was not a “violent person,” but recommended a new supervisor assignment. While the parties dispute the timing, the employer decided to terminate the plaintiff during his medical leave. The company determined that his threats were of such severity that he was unqualified to work with any supervisors or co-employees and that it could not expose its employees to potential workplace injury.

In response the plaintiff brought this case, seeking damages. The District Court granted the employer’s motion for summary judgment, and the Circuit Court of Appeals affirmed.

Employer Response to Threatening Conduct Found Inadequate

In the second case, an Occupational Safety and Health Review Commission (OSHRC) Administrative Law Judge, Dennis L. Phillips, issued an opinion that a healthcare company did not protect a social service coordinator, who was fatally stabbed outside her client’s home in December 2012. Secretary of Labor v. Integra Health Management, Inc., OSHRC No. 13-1124 (June 22, 2015) (Integra).

The employer in this case, Integra Health Management, Inc. (Integra), provided mental and physical health assessments and coordinated healthcare/case management services for insureds of insurance companies. One of its employees was a 25 year old newly- hired Service Coordinator (SC) with about three months on the job. The employee had no prior experience in the community health or social worker industries. The employee did not have an office at the company but instead worked out of her home. She also used her computer, a phone, and car to travel to client’s homes.

In October 2012, the employee planned to drive out into the field to a client’s apartment, to make an unscheduled visit. The client was a diagnosed schizophrenic, who was on the employee’s list of clients, known as “members,” for which she was responsible. The client had a history of violent behavior, and had been convicted of violent crimes and incarcerated for many years. The employee was not advised about the client’s history of mental illness or violent behavior when he was assigned to her. The employee had made several attempts to contact the client by telephone, which were unsuccessful.

As planned, the employee visited the client in October 2012 by going to his house unannounced. She introduced herself and the company and arranged a return visit to conduct an initial assessment. The employee reported in her progress note report for that day that during their conversation, the client “said a few things that made [her] uncomfortable, [she] asked [the client] to be respectful or she would not be able to work with him.” She also documented in her progress note report that “[b]ecause of this situation, [she] is not comfortable being inside alone with [the client] and will either sit outside to complete assessment or ask another SC to accompany her.”

A number of subsequent meetings and conversations occurred between the employee and the client including further notes in the employee’s progress note report regarding her concerns. In December 2012, the employee was fatally stabbed by the client during her visit to his home.

Following the incident the Occupational Safety and Health Administration (OSHA) issued two citations to Integra Health Management, Inc., claiming a violation of the General Duty Clause, section 5(a)(1), of the OSH Act, and a violation of OSHA’s injury reporting standard. Specifically, the General Duty Clause citation alleged that the employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees, in that employees were exposed to the hazard of being physically assaulted by clients with a history of violent behavior.

The Judge determined that the employer’s workplace violence policy was inadequate, that the employee training was insufficient, that the employer failed to provide the employee with information about the medical background of the client, as well as the criminal history. More importantly, the Judge determined that the employer did not monitor the employee’s progress notes which identified her concerns about the client and did not take affirmative action to assist her when she indicated her continuing anxiety about their interactions.

What are the Legal Ramifications that Employers Should Consider?

In Mayo the employer took steps to protect its employees from threatened harm by conducting a timely investigation, suspending and eventually terminating the aggressive and threatening employee. The company’s actions forced it to respond to discrimination claims under the ADA that initially were filed in state court, and removed to federal court. While the employer prevailed in the District Court and Circuit Court, the company undoubtedly spent considerable sums defending the suits. While this litigation was very time consuming and expensive, the employer avoided a tragic outcome.

Unfortunately in Integra the employer did not respond to or take any actions to address any sense of fear or anxiety mentioned in the employee’s client visit notes. A serious OSHA violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known. The Judge found that the healthcare company’s approach to safety was inadequate, and that the company should have taken precautions to prevent injury by developing a meaningful written policy, hiring and training its employees appropriately and responding to complaints in a timely manner. While the company only faced an OSHA fine of $7,000 in proposed penalties for the General Duty Clause violation, it sustained the tragic loss of an employee, as well as a worker’s compensation death suit.

Recent OSHA Guidance

The Mayo decision may give some sense of security to those employers that make hard choices for what it believes are the right reasons, that is, for employee safety. But choices are not always easy, and the resulting actions can be costly.

The Integra decision is timely in view of another recent OSHA action relating to the healthcare industry. Recently OSHA released an “Inspection Guidance for Inpatient Healthcare Settings,” that will focus its inspectors attention to workplace violence, musculoskeletal disorders, bloodborne pathogens, tuberculosis, and slips, trips, and falls. The Guidance focuses on hazards that were included in OSHA’s recently-concluded National Emphasis Program on Nursing and Residential Care Facilities, CPL 03-00-016.

Particularly, the Guidance indicates that workplace violence is defined as violent acts (including physical assaults and threats of assaults) directed toward persons at work or on duty. OSHA notes that workplace violence is a recognized hazard in hospitals, and in nursing and residential care facilities. According to OSHA, in the healthcare and social assistance sector, 13 percent of the injuries and illnesses were the result of violence. “Fifteen percent of the days-away-from-work cases for nursing assistants were the result of violence.” Accordingly, workplace violence will be evaluated in every inpatient healthcare OSHA inspection.

While the inspection Guidance is for “inpatient” healthcare settings, employers in other industries can be certain that they will also be inspected by the same OSHA inspectors as healthcare workplace violence incidents occur, regardless of the setting, including non-healthcare workplaces as well. The Guidance was effective immediately. The Guidance noted that “because these hazards are nationwide, State Plans are expected to follow the guidance.”

Healthcare employers should take heed of this healthcare industry OSHA decision and the related Guidance. Special attention should be taken to update your policies, procedures, and training systems to include these topics in order to be inspection ready.

Recommendations

Against this potential liability scenario, an employer must develop an effective written workplace violence policy which must be communicated to all employees if it hopes to have any defense against these potential claims and to prevent a tragic incident. At a minimum, the written workplace violence prevention policy should include the following elements:

  • Stated management commitment to protecting employees against the hazards of workplace violence, including both physical acts and verbal threats;
  • Statement that the employer has a “zero tolerance” policy toward threats or acts of violence and will take appropriate disciplinary action against employees who engage in such conduct;
  • Identify means and methods for employees to notify the employer of perceived threats of violent acts in a confidential manner;
  • Establish a means to promptly investigate all such threats or violent acts;
  • Develop consistent, firm discipline for violations of the policy;
  • Provide training for managers and employees to identify signs and symptoms of employee behavior which may predict potential violence (erratic behavior; employee comments regarding homicide or suicide; provocative communications; disobedience of policies and procedures; presence of alcohol, drugs or weapons on the worksite; physical evidence of employee abuse of alcohol or drug use) which should be reported immediately to the employer;
  • Establish a team of qualified individuals (e.g., human resources; risk managers; legal; medical; security) either within the company or readily available third parties, to respond to a potential or actual incident; and
  • Consider establishing an Employee Assistance Plan (EAP) to provide assistance to employees who may be experiencing mental or emotional stress before an act of violence occurs.

If you have any questions regarding this article, please contact any of the authors, or your Seyfarth attorney.