The Occupational Safety and Health Administration ("OSHA") provides that all employers have a general duty to provide employees with a workplace "free from recognized hazards  . . . that are likely to cause death or serious physical harm" to employees. A recent directive published by OSHA in September 2011 for the first time details the application of this "general duty clause" to workplace violence incidents. Notably, the directive narrows its scope to industries considered "vulnerable" to workplace violence and identifies healthcare and social services employers as a focus industry. 

Although all employers need to be aware of the risk of workplace violence, OSHA identified certain factors unique to the healthcare industry that make it susceptible to workplace violence. These include (i) the prevalence of weapons among patients and visitors; (ii) use of hospitals by police for criminal holds and care of violent individuals; (iii) the release of mentally ill patients from hospitals without follow-up care; (iv) robberies prompted by the availability of drugs or money; (v) the unrestricted movement of the public in healthcare buildings; (iv) long waits leading to client frustration; (vii) isolated work with patients; (viii) low staffing levels at high activity times; and (ix) lack of staff training in recognizing threatening behavior, among others.  

"Workplace violence" is defined as "violent acts (including physical assaults and threats of assaults) directed towards persons at work." Within the directive, OSHA identifies four categories of violence defined by the relationship between the perpetrator and target: (i) criminal intent—violent acts by people who enter the workplace to commit a crime; (ii) customer/client/patients—violence directed at employees by someone to whom the employer provides a service; (iii) co-worker—violence among co-workers; (iv) personal—violence by non-employees who have personal relationships with employees. The second category pertains most to the healthcare industry because of the prevalence of violence by patients towards staff members. 

The recent OSHA directive is meant to provide procedures for OSHA staff responding to incidents and conducting inspections in high risk industries. Pursuant to the directive, inspectors are to look for evidence as to whether an employer recognized the existence of a potential workplace violence hazard and had means to prevent or minimize the hazard. If an employer recognized a hazard but failed to adequately protect against it, it may be found in violation of the general duty clause.    

When an incident or complaint occurs in a healthcare setting, OSHA considers three criteria in determining whether to conduct an inspection. The first is whether a known risk factor exists. Risk factors to consider include: (i) working with unstable persons in healthcare settings; (ii) working in small numbers; (iii) working late at night or early in the morning; (iv) working in high-crime areas; (v) guarding valuable property; and (vi) working in community-based settings.  The second consideration is whether there is evidence of employer or industry recognition of the potential for workplace violence. The third consideration is whether feasible abatement methods exist. Additionally, inspections will generally always be conducted where there is a death of one or more employees or hospitalization of three or more employees.

After an OSHA inspection is conducted, four criteria are evaluated to determine whether to issue a citation: (i) existence of a serious workplace violence hazard and failure by the employer to address hazards, (ii) employer or industry recognition that workplace violence was a hazard, (iii) whether the hazard caused or was likely to cause death or serious physical harm; and (iv) whether the employer had feasible abatement means. If these criteria are satisfied, OSHA may issue a citation under the general duty clause.

Importantly, where OSHA does issue an employer a citation, they are required to document, in addition to the reasons for the citation, any feasible abatement methods that may address the hazard. The directive includes potential abatement methods, many of which should also be considered by a healthcare organization as a means to affirmatively avoid becoming subject to a citation. The directive includes a detailed list of specific methods which may be used to reduce or eliminate the hazard of workplace violence. These abatement methods include recommendations that employers conduct workplace violence hazard analyses and develop written, comprehensive workplace violence prevention programs. Additionally, OSHA identifies several ideas, unique to the healthcare industry, for how employers may implement engineering controls and workplace adaptations as well as administrative and work practice controls. For example, ensuring that rooms have multiple exits, using minimal furniture, installing shatter-proof glass, and providing emergency "safe rooms" may help reduce workplace violence incidents. Additionally, administrative controls such as having adequate numbers of qualified staff, working to decrease patient wait times, adopting sign-in procedures for visitors, and prohibiting employees from working alone in emergency areas all may prevent such incidents from occurring. The OSHA guidance includes many more specific ideas in addition to these. 

Ultimately, the high rate of workplace violence incidents in the healthcare setting relative to other industries is concerning. Review of OSHA abatement methods and integration of whatever methods best fit the individual employer may make a significant difference in the rate of incidents for an employer and should also serve to reduce an employer's exposure to OSHA citations.      

Ashley H. Hattaway is a partner with Burr & Forman LLP and practices in the area of labor and employment law. She has worked closely with many healthcare providers on their employment issues, policies and procedures and represented them in employment disputes.  Charlotte M. Pool is a student at the University of Alabama School of Law.

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