Oregon’s HB 4088A, introduced in the state legislature during the 2024 session, died in the Joint Ways and Means Committee when the legislature adjourned on March 7. The legislation was intended to strengthen Oregon’s workplace violence prevention laws by adding regulatory requirements and enhancing the criminal repercussions for assault of hospital workers. While most of the bill had bipartisan support, section 6 of the proposed legislation, which would have made the assault of a hospital worker a felony instead of a misdemeanor, garnered strong opposition.

In this post, we will explore some of the tensions, which apply not only in Oregon but on the national landscape, that surround the debate: Will criminalizing assaults—or making such assaults a felony instead of a misdemeanor—actually deter workplace violence in health care facilities?

Oregon’s HB4088A: Opposition

Opponents to the Oregon legislation, which included disability advocates (a strong interest group), the American Civil Liberties Union, an influential state senator, and public defenders, argued among other things that 1) the measure would have a detrimental effect on persons with disabilities or who could not control their conduct; and that 2) there is no solid evidence that increasing the severity of punishment deters crime.

In its opposition, Disability Rights Oregon argued that the legislation would have criminalized “disability related behavior and [would] do serious harm to people with disabilities’ access to healthcare.” Legislation that would “create enhanced criminal penalties for assaulting a hospital worker must exclude disability-related behavior of people with intellectual disability, developmental disability, dementia, traumatic brain injury, mental illness, or other condition that significantly impairs the person’s judgment or behavior,” the organization continued.

DRO claimed “there is no evidence to support the idea that enhanced criminal penalties prevent hospital worker assaults”—pointing to a brief authored by the National Institute of Justice asserting that increasing the severity of punishment does little to deter crime: “Laws and policies designed to deter crime by focusing mainly on increasing the severity of punishment are ineffective partly because criminals know little about the sanctions for specific crimes.”

The ACLU of Oregon—according to testimony of Senior Policy Associate Emily Hawley—also objected to the measure on the grounds of disability and mental illness. “People with disabilities and mental illness face significant barriers to health care, and people with mental illness may not access healthcare until they are experiencing a crisis,” Hawley wrote. “These situations are often stressful and can overwhelm patients, leading to outbursts and harmful conduct.”     

Oregon’s HB4088A: Support

Proponents, including hospitals, physician groups, and unions (which are strong in Oregon) pointed to 1) statistics showing that health care workers experience more non-fatal workplace violence injuries than any other profession; and that 2) other states have enacted similar laws.

“Upgrading the crime to a felony would hopefully prompt district attorneys to take the cases more seriously and be more inclined to prosecute them,” testified an emergency department registered nurse, pointing to Washington’s RCW 9A.36.041 and Idaho’s ID 18-915. “Health care workers deserve to be protected, and current law doesn’t do enough.”

Dr. Craig Rudy, MD, president of the Oregon Chapter of the American College of Emergency Physicians, testified that his chapter has worked on the issue with the Oregon Emergency Nurses Association for multiple sessions. “Assaults on healthcare workers have escalated during the pandemic and have reached a crisis,” he said.

Federal SAVE Act

The debate is also playing out on a national level. In April 2023, two U.S. Representatives from both sides of the aisle introduced the Safety from Violence for Healthcare Employees (SAVE) Act (H.R.2584). The legislation, which was also introduced in 2022, is modeled after current protections for air travel industry workers, flight crews, and attendants and would criminalize the knowing assault or intimidation of “an individual employed by a hospital, or an entity contracting with a hospital or other medical facility, during the course of the performance of the duties of such individual and, as a result, interferes with the performance of the duties of such individual or limits the ability of such individual to perform such duties.” Similar legislation was introduced in the Senate in September.

The proposed statute provides for a fine and imprisonment for up to 10 years—with enhanced penalties for up to 20 years for acts involving dangerous weapons or resulting in bodily injury.” However, the statute also provides that it shall be a defense to a prosecution that 1) the defendant is a person with a physical, mental, or intellectual disability; and 2) the conduct of the defendant was a clear and direct manifestation of such disability. It may be that this defense has softened the kind of opposition witnessed in Oregon. Hospital and physician leaders co-hosted a briefing in Washington, D.C., in late January 2024 to support the measure, which has strong support by other health care organizations and health care worker unions.

Takeaways

With more time, the Oregon legislation might have moved forward without section 6 or with a modified section 6, but the policy debate killed the entire package in the short session.  The discussion will resume in next year's long session. In the meantime, many experts in the field believe that comprehensive workplace violence prevention plans—in the absence of a federal standard by the Occupational Safety and Health Administration—can help far more than criminalization. A proposed federal bill, H.R. 2663/S. 1176, “Workplace Violence Prevention for Health Care and Social Service Workers Act,” for example, would require covered employers to develop and implement such plans—in the hope of preventing or reducing violence before an incident occurs.

Epstein Becker Green Staff Attorney Ann W. Parks contributed to the preparation of this post.

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