OSHA Penalizes Hospital for Endangering Workers

By Jeffrey Rhodes May 12, 2020
emergency sign at a hospital
​A psychiatric facility that had some patients prone to aggression could not overturn a $12,471 citation by the Occupational Safety and Health Administration (OSHA) by arguing that OSHA did not first issue an applicable workplace-violence rule, the U.S. Circuit Court of Appeals for the District of Columbia ruled.The Occupational Safety and Health (OSH) Act's general-duty clause, enforced by the U.S. secretary of labor, requires every employer to provide a workplace free from recognized hazards that cause or are likely to cause death or serious physical harm to its employees. Brooke Glen is a 146-bed facility in Pennsylvania that employs approximately 200 staff and treats patients who, due to serious psychiatric behavioral issues, often pose a danger to themselves or others. OSHA cited both Brooke Glen and Arbour-HRI Hospital, a smaller inpatient psychiatric facility in Massachusetts owned by the same corporate parent, for violating the general-duty clause by inadequately protecting their staff from the risk of patient aggression. Both facilities contested the citations in separate administrative proceedings before the same administrative law judge (ALJ). The ALJ upheld Brooke Glen's citation for $12,471 but vacated Arbour-HRI's.[SHRM members-only toolkit: Developing Effective Safety Management Programs]Before the ALJ, both Brooke Glen and OSHA provided testimony from experts addressing the effectiveness of various measures for protecting employees from patient aggression. In reviewing this testimony, the ALJ noted that Brooke Glen was not cited for inadequately protecting against patient-on-staff violence by failing to follow clinical-care guidelines or by delivering inappropriate clinical care. Rather, OSHA found that Brooke Glen's workplace-violence program was inadequate because it failed to update or implement various written safety policies. For example, regarding staff training, the facility failed to present evidence of whether it made available to employees a PowerPoint presentation that it created on workplace violence. The ALJ found the facility's Code 100 system—used to summon help in psychiatric emergencies—relied on phones inadequately distributed throughout the facility and walkie-talkies that staff lacked or that frequently did not work.The ALJ found that Brooke Glen's policy requiring post-incident debriefing of patient-aggression incidents was not followed and that debriefings did not consistently occur. When they did occur, they were often so limited that they did not meaningfully increase workplace safety.The judge agreed that OSHA's principal recommendations of having Brooke Glen complete a self-evaluation and institute a comprehensive workplace-violence prevention and response program would effectively address the gaps in its system. The ALJ also agreed with OSHA's recommendations for:Ensuring more consistent reporting of patient-on-staff aggression incidents and routine debriefing following incidents.Improving procedures for summoning help during violent encounters.Involving front-line staff on committees tasked with reviewing workplace-safety policies.Enhancing training regarding patient-on-staff violence.On appeal to the D.C. Circuit, Brooke Glen contended that the ALJ's determinations were not supported by substantial evidence and that OSHA failed to provide adequate notice of the workplace-safety measures for which it was cited under the general-duty clause.The D.C. Circuit noted that its substantial-evidence-review standard was highly deferential to OSHA. While Brooke Glen's expert argued that the precautions required by OSHA were not generally used in the industry, that was not enough to show that Brooke Glen did not violate the general-duty clause. Rather, Brooke Glen's own written policies supported the ALJ's ruling.Brooke Glen argued that it had a low rate of workplace violence compared to other psychiatric facilities. The ALJ nonetheless found that, unlike Arbour-HRI, Brooke Glen had inadequate recordkeeping practices regarding such incidents. Even a relatively low patient-aggression rate did not address Brooke Glen's principal shortcoming, which was its failure to fully implement the policies it had to reduce the hazard rate of patient-on-staff violence. Brooke Glen also argued that the adjudication violated the due process clause because OSHA did not first issue a rule concerning patient-on-staff violence procedures. The D.C. Circuit disagreed, finding that the measures required by OSHA should have been evident to any major psychiatric inpatient hospital. In fact, Brooke Glen had many of the required written policies.BHC Northwest Psychiatric Hospital, LLC, d/b/a Brooke Glen Behavioral Hospital v. Secretary of Labor, D.C. Cir., No. 19-1089 (March 3, 2020).Professional Pointer: OSHA can implement safety requirements by a workplace investigation and penalty under the general-duty clause. It need not always issue a rule of compliance standards or otherwise notify an employer in advance of required safety measures before issuing a citation.Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.



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