By Eric J. Conn and Kathryn M. McMahon

In April 2015, OSHA released new “Guidelines for Preventing Workplace Violence for Health Care and Social Services Workers,” reflecting a few years of work updating an existing set of guidelines in this area from 2004.  The development of this update was driven by OSHA’s concern over the number of workplace violence incidents in the hospital, nursing care, and residential home health industries. 2013 BLS statistics show that 70% of the 23,000 known workplace assaults occurred in the health care / social services industries.  The new Guidelines incorporate research that has been conducted since 2004 into the causes of workplace violence in health care settings, risk factors that accompany working with patients or clients who display violent behavior, and the appropriate preventive measures that can be taken.

OSHA’s Guidelines set forth a number of recommendations for healthcare organizations to consider implementing to prevent workplace violence, including:

• Create a Written Zero-Tolerance Workplace Violence Prevention Program
• Conduct Employee Training
• Screen Patients for Potential Violence
• Ensure Security Personnel are Available and Trained
• Implement System to Flag Patient’s History of Violence

The new Guidelines are not so different in substance from the prior guidelines.  The publication generally follows the same outline and presents a similar set of recommendations to what was included in the 2004 publication.  Specifically, OSHA continues to emphasize the importance of developing a comprehensive written workplace violence prevention program.  The program elements recommended include the same elements listed in the 2004 guidelines (and virtually identical to the elements included in the original 1996 guidelines), which mimic the five basic components of an injury and illness prevention program:

1. Management commitment and worker participation;
2. Worksite analysis and hazard identification;
3. Hazard prevention and control;
4. Safety and health training; and
5. Recordkeeping and program evaluation.

The biggest difference between the new version and the 2004 version is that the new guidelines distinguish between the different types of covered settings (i.e., hospitals, long-term care facilities, non-residential facilities, etc.), and makes specific recommendations for each type of facility, rather than including one-size fits all recommendations, as the 2004 version did.  Pages 18-19 of the new guidelines include a list of questions, which, when answered, lead employers to the determination of the type of facility at issue, and therefore, the recommendations most applicable to your workplace.

The other important difference is that the new guidelines incorporate a number of practical tools to describe how employers can implement OSHA’s recommendations (e.g., a workplace violence prevention program checklist).

OSHA does not have any specific regulations that address workplace violence, and the rulemaking process is very slow and resource heavy.  Not having a standard, however, has not stopped OSHA from enforcing pet safety issues like this and other high profile hazards (e.g., ergonomics, heat illness, distracted driving, etc.).  In cases where OSHA does not have a specific regulation addressing a hazard, OSHA issues citations under Sec. 5(a)(1) of the OSH Act — the General Duty Clause — which requires employers to:

“provide employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm . . . .”

As the Act states, in order to establish a General Duty Clause violation, OSHA must prove that an unregulated hazard is “recognized,” either by the employer or the employer’s industry.  To demonstrate recognition of a hazard, OSHA often cross-references industry consensus guidance, an employers own policies, or OSHA’s own guidance documents (i.e., the employer knew or should have known about a particular hazard described in the guidance, and failed to abate the hazard with a recognized, feasible method also set forth in the guidance).  Since producing a guidance document is simple, it requires no input from industry stakeholders or analysis about feasibility, and OSHA can issue citations based on the guidance, it is no surprise that OSHA has been increasingly relying on “non-mandatory” guidance documents together with the General Duty Clause to circumvent the long, arduous, and often controversial APA-required Notice & Comment Rulemaking process that precedes adoption of formal, mandatory regulations.

Health care industry employers should expect OSHA to enforce these new “informal guidelines” the same way, especially with the launch of OSHA’s new Health Care Initiative, and the release earlier in this Administration of a compliance directive for “Enforcement Procedures for Investigating or Inspecting Workplace Violence Incidents,” in which, OSHA outlined the procedures for using the General Duty Clause to cite employers for not adequately protecting against incidents of workplace violence.

Some recent enforcement actions include hospitals in the northeast that were cited (some for willful violations) for allegedly failing to provide adequate safeguards against workplace violence when employees in the psychiatric ward, emergency ward, and general medical floors were injured by violent patients.  Accordingly, it is important for health care employers to review OSHA’s Guidelines for Preventing Workplace Violence for Health Care and Social Services Workers, and consider whether their current safety practices comply with these guidelines.