Health Care Employers Should Prepare for OSHA to Release Proposed Workplace Violence Rule

Federal workplace safety officials plan to release a proposed rule later this year aimed at preventing workplace violence in the health care industry, giving employers time to prepare for the potential for increased compliance obligations and greater legal exposure. The Occupational Safety and Health Administration (OSHA) will likely propose a new standard in December—which could potentially be finalized and take effect next year—requiring health care employers to implement written workplace violence prevention programs and other measures to protect their workers. We’ll explain what happened, how we got here, and what employers should do now.

What Happened?

Last month, OSHA published an updated regulatory agenda showing that it plans to release the Prevention of Workplace Violence in Health Care and Social Assistance proposed rule in December. The proposed rule would then be subject to a comment period of up to 60 days and could potentially be finalized and effective sometime next year.

This latest move follows the agency’s years-long review of workplace violence in health care and social assistance settings. For example:

• In 2016, OSHA issued a request for information that solicited information from health care employers, workers, and other subject matter experts, including on impacts of violence and prevention strategies in the industry. A broad coalition of labor unions (and separately, the National Nurses United) then petitioned OSHA for a standard preventing workplace violence in health care. The agency granted those petitions in 2017.
• In 2023, OSHA convened a Small Business Advocacy Review (SBAR) panel and issued an SBAR report after receiving input from small businesses in various sectors, including hospitals, residential behavioral health facilities, freestanding emergency centers, residential care facilities, and home health care businesses.

According to the SBAR report, health care workers “face an increased risk of workplace violence resulting primarily from violent behavior of their patients, clients, residents, and/or visitors in their workplaces.” For example, estimates show hospital workers experience nonfatal assaults in the workplace at a significantly higher rate (8.3 assaults per 10,000 workers) than the rate for workers in all private-sector industries (2.0 assaults per 10,000 workers). And the injury rate is even higher among certain segments, such as psychiatric and substance abuse hospitals.

What Might the New Proposed Rule Require?

If published, a new proposed rule could provide a programmatic, performance-based approach to addressing workplace violence and require health care employers to take the following steps:

• Develop and implement a written workplace violence prevention program.
• Perform regular hazard assessments.
• Implement controls to mitigate the hazards identified.
• Train and educate all staff members on potential hazards and how to protect themselves and their co-workers.
• Maintain a specific workplace violence recordkeeping log and perform incident investigation procedures.
• Inform employees of their rights to the protections under the new rule.

Recent Examples of OSHA Taking Action Over Workplace Violence Issues

OSHA is no stranger to taking action against employers for incidents involving workplace violence. Here are two recent examples:

• An employer faced over $100K in penalties after an employee was attacked by a patient. In May, OSHA cited the operator of multiple psychiatric and rehabilitation facilities for a “repeat violation for not providing a workplace free of recognized safety and health hazards,” finding that the employer “failed to provide sufficient controls to prevent the escalation of acts of aggression toward professional staff.” The investigation began after the employer reported a Florida worker’s hospitalization resulting from a patient using a metal hole punch to repeatedly strike the mental health technician at a nurse’s workstation. The employer now faces $101,397 in proposed OSHA penalties for these violations.
• Department of Veterans Affairs (VA) cited for failing to protect employees from serious patient violence. In July, OSHA announced that it cited an Arizona VA medical center after concluding it failed to protect nurses, nursing assistants, and housekeeping staff from “unit residents who kicked, bit, struck, punched, slapped, and sexually harassed them.” While government employers are generally exempt from OSHA violations and penalties, they can be “issued notices of unsafe and unhealthful working conditions and required to demonstrate they have abated hazards.” OSHA said if this facility had been a private-sector employer, it could have faced penalties of up to $161,323.

What Should Health Care Employers Do Now?

The Prevention of Workplace Violence in Health Care and Social Assistance proposed rule will likely be published by the end of the year and could potentially be finalized as early as next year. Now is a good time to review existing workplace safety policies and evaluate whether they adequately address workplace violence. Employers should stay tuned for updates regarding the new proposed rule and make sure they are complying with existing laws and guidance, including the following:

• Federal law. Federal OSHA has long taken the position that the General Duty Clause under the Occupational Safety and Health (OSH) Act requires employers to “take reasonable steps to prevent or abate a recognized violence hazard in the workplace.” And in 2019, the Occupational Safety and Health Review Commission—an independent federal agency that is not part of the Department of Labor or OSHA—ruled for the first time that the general duty clause requires employers to protect employees from incidents of workplace violence.
• OSHA guidance. In 2016, OSHA released Guidelines for Preventing Workplace Guidance for Health Care and Social Service Workers. While the guidance is not legally binding, it recommends incorporating a written program for workplace violence prevention and provides detailed measures and checklists for implementing the program. OSHA also maintains a Workplace Violence Safety and Health Topics page for employers across industries.
• State laws. Employers should also be aware of any relevant state laws. For example, a California law that took effect in July requires each employer to create and implement a workplace violence prevention program, train employees and supervisors on workplace violence matters, create and maintain a violence incident log, and keep records of all training and violent workplace incidents.

Laurel K. Cornell and Chantell C. Foley are attorneys with Fisher Phillips in Louisville, Ky. Hannah Sweiss is an attorney with Fisher Phillips in Los Angeles and Woodland Hills, Calif. © 2024 Fisher Phillips. All rights reserved. Reposted with permission.