Protect "Thy" Workplace: OSHA Cites Employer Under General Duty Clause in Fatal Stabbing of Home Healthcare Worker

by Holland & Knight LLP
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The Occupational Safety and Health Administration (OSHA) recently issued a citation to Integra Health Management, Inc., finding that the company violated the Occupational Safety and Health Act in connection with the stabbing death of one of its employees, a home healthcare caseworker. The case should be of interest to all private employers, especially those companies that provide home healthcare services or those that have employees in workplaces outside a conventional office.

In citing Integra for two violations of the Act and issuing a fine of $10,500 within days of the six-month statute of limitations, OSHA concluded that the death could have been prevented. Relying upon its "General Duty Clause," Section (5)(a)(1) of the Act, OSHA proposed a $7,000 fine, the maximum allowed, for failure to provide a safe workplace. The agency also proposed a $3,500 fine for failure to report a worker's death to OSHA within eight hours, as required by 29 C.F.R. §1904.39(a).

Background

In December 2012, an employee of Integra — a company that deploys teams of specially trained non-clinical staff, Service Coordinators, into communities to find and engage hard-to-reach members in need of medical and behavioral care — was stabbed to death by a mentally unstable patient with a long criminal record while visiting him in Dade City, Florida. The home healthcare worker traveled alone to visit the patient, even though she had previously noted in his file that she felt "uncomfortable" with him and that two employees, not one, should visit him in the future. The employee was conducting a follow-up meeting to perform a hospitalization risk assessment, determine whether the patient was taking his medications and organize his paperwork for treatment.

The patient has been charged with first-degree murder and remains in jail, having been deemed competent to stand trial earlier this year. He previously spent seven years in prison for aggravated battery with a deadly weapon. It has been reported that from 2006 until the killing in question, the authorities had received more than 50 complaints about him, ranging from trespassing to battery and drunken, disorderly behavior.

OSHA's Citation

The General Duty Clause, used by OSHA when no specific regulatory standard applies to the situation at hand, requires employers to provide their employees with a place of employment that is "free from recognized hazards that are causing or likely to cause death or serious physical harm to employees." There are currently no specific standards for workplace violence. The courts have interpreted an employer's obligation under the General Duty Clause to mean that an employer has a legal obligation to provide a workplace free of conditions or activities that either the employer or industry recognizes as hazardous and that cause, or are likely to cause, death or serious physical harm to employees when there is a feasible method to abate the hazard.

As for what would constitute a "recognized" hazard concerning workplace violence sufficient to implicate the General Duty Clause, it is OSHA's position, and the courts have concurred, that when an employer has experienced acts of workplace violence or becomes aware of threats, intimidation or other indicators that the potential for violence in the workplace exists, such employer would be deemed to be on notice of the risk of workplace violence and should implement a workplace violence prevention program combined with engineering controls, administrative controls and training.

OHSA Orders a Violence Prevention Program

Although Integra's Chief Operating Officer has said that each team member receives safety training and is told their own welfare comes first, OSHA is requiring that the company develop an extensive workplace violence prevention and training program. The agency has set forth a detailed abatement protocol that includes determining the threats clients may pose to Integra's employees. According to OSHA's acting regional administrator for the southeast, Teresa Harrison, if Integra had a "comprehensive, written, workplace violence prevention program to address the hazards and assist employees when they raise concerns about their safety," the Florida stabbing death could have been prevented.

Implications for Employers

This matter should serve as a stark reminder — if not a warning — from OSHA to employers, especially those in the home healthcare field, that the "workplace" to be provided employees in a safe condition includes unconventional places, including the private residences of the employer’s customers. It also strongly suggests that under the General Duty Clause — or, as applicable in any given situation, under the dozens of OSHA's specific standards that might be applicable to employees working as personal/home care aides, companions and nurses, and in other capacities in the homes of their employer's clients — employers must take affirmative significant steps to make sure the client's/patient's home is safe and free from hazards.

In addition to violence, home healthcare workers face other health and safety hazards in their "workplace," including, but not limited to, those arising from bloodborne pathogens, biological hazards, latex sensitivity, ergonomic hazards from patient lifting, hostile animals, unhygienic environments and other dangerous and unsafe conditions including hazards on the road as they drive from home to home, if their daily work schedule requires driving from one patient to the next. These employees must be protected just the same as those employees who work in offices and other more traditional workplaces.


 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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