OSHA Workplace Violence Directive Targets Risks in Healthcare Industry

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The Occupational Safety and Health Administration (“OSHA”) issued a new compliance directive on September 8, 2011, titled Enforcement Procedures for Investigating or Inspecting Incidents of Workplace Violence (“Directive”). The Directive is intended to guide OSHA field officers when investigating complaints of workplace
violence or when workplace violence is identified as a hazard while conducting an inspection. The Directive also provides guidelines for conducting investigations in industries OSHA deems at high risk for workplace
violence, such as the healthcare field. As the Directive states, it “highlights the steps that should be taken in
reviewing incidents of workplace violence when considering whether to initiate inspections in industries
that OSHA has identified as susceptible to this hazard.”

The Directive does not require OSHA to respond to every complaint or incident related to workplace violence.
Rather, it provides general enforcement guidance to be used in deciding to make an initial response and/or to cite an employer. Employers that fail to reduce or eliminate a recognized workplace violence hazard may be found in violation of the Occupational Safety and Health Act’s General Duty Clause, which requires employers to protect employees from “recognized hazards that are causing or are likely to cause death or serious physical harm.”

The Directive lists four categories of workplace violence based on the relationship of the perpetrator to the victim. The four categories include: (1) criminal intent (violent acts by people who enter the workplace to commit a robbery or crime, or current or former employees who enter the workplace with the intent to commit a crime); (2) customer/client/patient (violence directed at employees by customers, clients, patients, and so forth); (3) co-workers (violence against co-workers by a current or former employee); and (4) personal (violence in the workplace by a non-employee who is known to, or has a relationship with, an employee).

The Directive specifically identifies healthcare/social services settings, along with late-night retail settings, as
particularly susceptible to workplace violence. It also lists factors that may indicate a risk of workplace violence, including: (1) working with the public or volatile or unstable people; (2) working alone or in isolated areas; (3) providing services and care; and (4) working late at night or in high-crime areas. The Directive focuses on two questions to determine whether an investigation or citation is appropriate: (1) Did the employer recognize potential workplace violence hazards? (2) Are there feasible means of preventing or minimizing the hazard?

The Directive also contains a list of potential hazard abatement methods for employers to minimize or
eliminate the risk of workplace violence (including alarm systems, panic buttons, hand-held alarms, metal detectors and surveillance cameras). OSHA also recommends establishing liaisons with local law enforcement agencies, requiring mandatory reporting of incidents, maintaining a log book of reported violence and informing employees of the procedures for obtaining police assistance or filing criminal charges. In 2004, OSHA published Guidelines for Preventing Workplace Violence for Health Care & Social Services Workers. It should be reviewed for more information about how to prevent workplace violence in the healthcare industry.

OSHA’s issuance of the Directive indicates a heightened enforcement focus on workplace violence, particularly in the healthcare industry. To avoid being cited for a workplace violence violation, employers will need to
increase their efforts to identify and eliminate or reduce potential workplace violence hazards. The way in which workplace violence issues are managed will directly affect an employer’s ability to avoid OSHA citations and potential civil or criminal liability.

OSHA’s guidelines can be accessed at http://www.osha.gov/Publications/OSHA3148/osha3148.html.

For further information about the topics discussed in this Client Alert, please contact any of the attorneys listed below.

Health Care team:

Sharon Prise Azurin (716) 847-7088 sazurin@phillipslytle.com
Ericka N. Bennett (716) 504-5723 ebennett@phillipslytle.com
James R. Grasso (716) 847-5422 jgrasso@phillipslytle.com
Robert Michael Greene (716) 847-7038 rgreene@phillipslytle.com
William P. Keefer (716) 847-5488 wkeefer@phillipslytle.com
Eric M. Kraus (212) 508-0408 ekraus@phillipslytle.com
Lisa McDougall (716) 847-5478 lmcdougall@phillipslytle.com
David J. Murray (716) 847-5453 dmurray@phillipslytle.com
Steven P. Przybyla (716) 847-5459 sprzybyla@phillipslytle.com

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