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.

By James L. CurtisDaniel Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: NIOSH reiterated last week that healthcare workers are exposed to a wide range of hazards on the job and healthcare employers may not be following best practices to protect against these hazards.

Healthcare is the fastest-growing sector of the U.S. economy, employing over 18 million workers, 80% of which are women.  These healthcare workers face numerous hazards on the job, including sharps injuries, exposures to chemicals and hazardous drugs, musculoskeletal disorders (MSDs), latex allergy, violence, and stress.

Significantly, there are more cases of healthcare workers suffering nonfatal occupational injury and illnesses than any other industry sector.  In a recent healthcare study, NIOSH found that as to administering aerosolized pentamidine to patients “22% of respondents did not always wear protective gloves, 69% did not always wear protective gowns, and 49% did not always wear respiratory protection….”  NIOSH concluded that there was “a belief that employers do not fully appreciate the potential adverse health effects associated with exposure to these drugs and therefore do not prioritize adherence.”

As to high-level disinfectants, the survey findings showed that best practices to minimize exposure have not been universally implemented.  NIOSH’s survey found that “17% of respondents said they never received training and, of those who received training, 42% said that it was more than 12 months ago.  19% of respondents said that employer safe handling procedures were unavailable.”  “44% of respondents did not always wear a protective gown and 9% did not always wear protective gloves.”

Critically, NIOSH concluded that employers and employees did not always follow best practices.

For healthcare employers this conclusion should be a red-flag as to the overall quality of their safety and health policies.  Healthcare employers should consult with safety professionals who are well versed in the areas where the employers may be out of touch with best practices.  Such consultations can enhance employee safety and help avoid liabilities associated with OSHA violations.

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.

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.