If you have been reading the tea leaves lately, you have noticed that the federal government has recently taken steps designed to reduce the number of injuries suffered by workers in healthcare industries due to assaults. While the goal is laudable, the process may well end up costing you dearly.
In April of this year OSHA issued an update to its Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers. (The sixty page update can be found at: https://www.osha.gov/Publications/osha3148.pdf.) This is the first update to this Guidance issued by OSHA in over ten years. In the new Guidance, OSHA specifies what it considers to be the minimum steps that should be taken by healthcare providers in order to protect workers from workplace violence. For example, the Guidance specifies that healthcare employers should have written workplace violence programs that include elements such as: express management support, worksite analysis of risks, hazard prevention and control practices, training for all employees and managers and accurate record keeping processes.
It appears as if OSHA has good reason to focus on workplace safety in the healthcare arena. According to the Bureau of Labor Statistics, in 2013 over 23,000 significant injuries occurred due to work place assaults. Incredibly, over 70% of those injuries occurred at healthcare and social service providers. According to OSHA statistics, workers employed in healthcare and social service fields are injured by workplace violence more than four times as often as other private-sector workers.
Since the issuance of the Guidance in April of this year, Administrative Law Judges (ALJ) have upheld OSHA Citations based, in part, upon employers’ failure to meet the elements outlined in the new Guidelines. In one instance, a Healthcare Coordinator was tragically stabbed to death by a patient with a history of violent outbursts. At the time of the incident, the employer had begun to create its own workplace violence program. However, the program had not been implemented. OSHA cited the employer, contending that it failed to take appropriate steps to protect its employee from violence in violation of the General Duty Clause. The ALJ agreed with OSHA and upheld the Citation. Both OSHA and the ALJ stressed that their decisions were based in large part upon a showing that the employer had failed to conduct a hazard assessment of the Healthcare Coordinator’s position and that the employer had not yet implemented a written program to prevent workplace violence hazards, nor had it yet trained its employees on methods that could be used to prevent violence. This means that healthcare employers are going to be far more likely to be cited by OSHA when their employee’s suffer injury due to an assault
In addition to an increase in the likelihood of a Citation, the Citation itself is going to be far more expensive. In October of this year the Bipartisan Budget Act removed certain restrictions from the penalty provisions of several statutes, including the Occupational Safety & Health Act. This will have the effect of causing the penalties issued under the Act to increase by approximately 78% in 2016 and by a percentage related to the rate of inflation every year thereafter. This means that the current penalty of $7,000.00 for Other-than-serious and Serious Citations will increase to $12,476.00 and the $70,000.00 penalties for Repeat and Willful Citations will increase to $124,765.00.
In addition to the increased dollar amount of OSHA penalties, healthcare providers may also now face the loss business opportunities due to OSHA citations. In 2014 President Obama signed the Fair Pay and Safe Workplace Executive Order. This Executive Order will require all federal contractors bidding on federal procurement contracts for goods or services worth more than $500,000.00 per year to disclose all labor law violations committed within the past 3 years at the time of the contract bid and every six months thereafter. This will include the disclosure of all OSHA citations. The federal contracting officer will consider the violations in determining whether the company should be awarded the contract and whether they should retain the contract. In addition, contractors will be required to certify that their subcontractors meet the standards of the Executive Order.
The good news is you can take steps now to significantly reduce the probability that you will be cited by OSHA. The Guidelines published by OSHA and the opinions of the ALJ’s ruling upon workplace violence Citations offer a road map for steps that OSHA expects a healthcare provider to take in order to prevent workplace violence. Generally, OSHA requires that healthcare employers conduct a worksite analysis of the risks involved in certain jobs, that they create a written program addressing workplace violence, that they train workers in the application of the program and that they enforce the program.
Given the risks involved in not taking action, healthcare employers who have not already done so should begin the process of putting together their own written workplace violence program as soon as practical. Once an employee is injured in an assault, it is too late to start working on your program.