On March 4, 2019, the U.S. Occupational Safety and Health Review Commission (Commission) issued its first affirmation of a citation and penalty issued by the Occupational Safety and Health Administration (OSHA) to punish a health care provider under the Employer’s General Duty Clause for failing to take adequate steps to prevent workplace violence. OSHA has issued citations under this Clause since 2012, but this is the first time that the Commission has confirmed one of these citations on appeal.
What is the Employer’s General Duty Clause?
The federal OSH Act requires every federally-regulated employer to evaluate workplace hazards and protect its workers (OSH Act section 5 (29 USC section 654)):
“(a) Each employer—
(1) Shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.
(2) Shall comply with occupational safety and health standards promulgated under [the federal OSH Act].
(b) Each employer shall comply with occupational safety and health standards and all rules, regulations and orders issued pursuant to [the federal OSH Act] which are applicable to his own actions and conduct.”
OSHA’s regulatory activities tend to reverse the order in these two clauses. OSHA identifies typical workplace hazards; promulgates “standards” with engineering, equipment, administrative and training requirements that would identify and address the hazards; and requires employers to implement them in the workplace where those hazards are present.
OSHA provides much less General Duty compliance direction. It issues generalized Safety and Health Program Management Guidelines (initially in 1989; I wrote 2016 revisions here).
How Does OSHA Prove A General Duty Violation?
Based on the statute and its guidance, OSHA identifies the following elements as necessary to prove a violation of the General Duty Clause:
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The employer failed to keep the workplace free of a hazard to which its employees were exposed.
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The hazard was a recognized one.
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The hazard caused or was likely to cause death or serious physical harm.
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There was a feasible and useful method to correct the hazard.
OSHA applied this 4-step analysis to the Integra Health Management case that the Commission reviewed.
What Happened in This Case?
Integra Health Management, Inc. (Integra) employs “service coordinators” to help its clients (the company calls them “members”) obtain and maintain medical care. Health insurers send individuals to become Integra members after claims histories identify that they are not receiving appropriate care for, in many cases, chronic medical conditions like mental illness. Integra assigns each member a service coordinator, who is responsible for locating the member, introducing the company and its services, and obtaining consent to provide Integra’s assistance. Thereafter, the service coordinator typically contacts the member several times a month, both by telephone and face-to-face, to help ensure that the member receives medical treatment. Integra considers these to be community health services rather than clinical medical or health services.
Integra trains its service coordinators in several ways. One is an Internet-based course which includes a session on “In-Home and Community Safety” that with PowerPoint presentations on “Screening the Dangerous Member” and “Safety in the Community.” These advise – but do not require -- service coordinators to obtain “critical history about previous unsafe behaviors” and “collateral information from family members, friends, [and] clergy.” They also identify potentially high-risk behaviors and personal histories that members may present.
In addition, Integra: holds in-person training sessions, which include safety discussions and role-playing scenarios; conducts weekly conference calls with service coordinators, including safety discussions; uses a voluntary “buddy system” advising service coordinators who “feel uncomfortable” to call another service coordinator “and go out together;” and maintains a written workplace violence prevention policy, stating that “[v]iolence … against an employee … will not be tolerated,” advising employees to report any threatening communications to supervisors, and warning that “[v]iolations of this policy . . . may result in disciplinary action.”
- Employee-A is fatally attacked by a client
In 2012, Integra hired “Employee-A”, a 25-year-old recent college graduate with no prior experience in social work or working with the mentally ill. After providing the requisite training, Integra assigned her case file for Member-L, who suffered from cardiovascular disease and schizophrenia. Unknown to Integra or Employee-A, Member-L had a prior criminal record including 15 years in prison for a variety of violent crimes. Employee-A visited Member-L at home three times. During the first two visits, he made comments that made her uncomfortable and demonstrated delusional behaviors. She documented these facts, and her supervisors reviewed the documents but did not intervene. During the third visit he killed her with a knife, chasing her across his front yard and stabbing her 9 times.
- This case
OSHA investigated, and eventually cited Integra for violating the General Duty Clause by exposing workers to for exposing employees “to the hazard of being physically assaulted by members with a history of violent behavior.” OSHA determined that Integra recognized the potential dangers to its employees from “members,” as reflected in the company’s training and formal policies. However, the facts demonstrated that Integra did not take adequate protective measures; OSHA argued that any of the following would have been feasible and helpful as hazard abatement measures:
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Create a stand-alone written Workplace Violence Prevention Program for all the service programs, including training and education, and internal systems for hazard and incident reporting, and incident investigation.
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Determine the behavioral history of new/transferred members, identifying members with assaultive behavior problems and communicating pertinent information to all potentially exposed employees; and “have a system for holding members accountable for violent behavior through consequences or interventions”.
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Put procedures in place that would communicate any incident of workplace violence to all staff who could potentially be exposed to the member(s) involved in the violent incident in a timely manner.
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Train all employees on effective methods for responding during a workplace violence incident.
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Implement and maintain a buddy system as appropriate based on a complete hazard assessment which includes procedures for all staff to request and obtain double coverage when necessary, including but not limited to situations where an employee communicates that he or she feels unsafe being alone with a particular member.
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Provide all staff with a reliable way to summon assistance when needed.
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Establish a liaison with law enforcement representatives.
What’s Next?
This decision provides formal support for OSHA’s efforts to expand attention to workplace violence prevention, by embracing the General Duty Clause analysis for “recognized hazards.” In issuing this decision, however, the Commissioners recognized that leaving workplace violence prevention to case-by-case analysis after employees are hurt or killed is less protective and more cumbersome. They noted that OSHA could adopt a workplace violence prevention standard, and that California has done so for health care facilities. (I blogged about California’s standard here).
Self-Assessment Checklist
Does the organization operate any activities or facilities where employees may be subject to workplace violence, including violence by clients or customers?
- If so, does it maintain a workplace violence prevention plan?
Do the organization’s worker safety programs and policies include elements relevant to workplace violence prevention (i.e., in a dedicated plan, or as elements within other programs and policies):
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Have a plan for workplace violence prevention, including procedures to ensure appropriate prevent and response activities?
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Have established communication and cooperation procedures with local emergency responders and law enforcement?
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Record incidents of workplace violence?
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Have procedures and method(s) for reporting incidents?
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Provide employees training in workplace violence hazards, prevention and responses?
Has the organization ever had a workplace violence incident at one of its operations?
- If so, how has the organization responded?
Where Can I Go For More Information?
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OSHRC decision (Secretary of Labor v. Integra Health Management, Inc.) (OSHRC Docket No. 13-1124) (3/4/19) -
Specialty Technical Publishers (STP) provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements. These include Workplace Violence Prevention: A Practical Guide to Security on the Job
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: tei@ix.netcom.com