Earlier this year, the Occupational Safety and Health Administration (OSHA) published updated "Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers," citing troubling statistics about increased violence in healthcare and social services settings.
According to the report, in 2013, 27 out of 100 fatalities in healthcare and social services settings were due to assaults and violent acts, and from 2011 through 2013, 70 percent to 74 percent of non-fatal injuries arising from workplace assaults occurred in healthcare and social services settings.
The publication of the updated guidelines was followed in late June by a Department of Labor announcement that OSHA would expand its enforcement resources in healthcare settings, particularly in hospitals and nursing homes, to focus on key workplace hazards, including workplace violence. With an increased threat of violence and closer governmental scrutiny of internal protocols, physician practices should act now to ensure they are in compliance with the updated guidelines.
Practices Not Immune to Violence or Compliance
Though the guidelines specifically identify risks and hazards arising at hospitals, long-term care facilities, non-residential clinics, group homes and in certain home health settings, they also apply to your medical practice.
Two recent events point to an alarming increase in incidents of workplace violence at medical offices. On March 31, a woman was shot and killed while 16 employees and patients were trapped inside a Fresno, Calif., medical office building. On April 22, a man entered a doctor's office in suburban Birmingham, Ala., demanding to see a doctor, and when he could not be accommodated, he released pepper spray in the waiting room as he fled the practice.
Take Action to Ensure Compliance
Regardless of size, every physician practice should conduct a workplace violence hazard analysis and develop a written, comprehensive workplace violence prevention plan. OSHA's guidelines identify five "building blocks" that should be a part of this process:
1. Management commitment and worker/employee participation;
2. Worksite analysis and hazard identification;
3. Identification of controls to eliminate or reduce hazards;
4. Safety and training for all personnel; and
5. Record keeping and evaluation.
OSHA's enforcement manual, "Enforcement Procedures for Investigating or Inspecting Workplace Violence Incidents," provides a great roadmap for what the agency's inspectors seek. Some of the key points identified for any workplace violence prevention plan include:
• the assessment/implementation of any needed physical changes to the workplace;
• the utilization of engineering controls such as alarm systems, panic buttons, metal detectors, closed circuit monitoring systems and effective lighting/locking procedures; and
• the implementation of administrative processes for reporting, coordination with law enforcement and for the development of response protocols — all of which seek to reduce/eliminate security hazards and prevent workplace violence incidents.
OSHA's "General Duty Clause"
You may be wondering why the guidelines trigger a compliance concern if they are only "guidelines." Even the OSHA website acknowledges, "there are currently no specific standards for workplace violence." Likewise, the preamble to the guidelines confirms that they are "advisory in nature," do not constitute standards or regulations, and do not "create new" or "alter existing obligations under OSHA."
Nevertheless, OSHA still has enforcement power and may issue a citation for a violation of the guidelines pursuant to Section 5(a)(1) of the Occupational Safety and Health Act, which requires all employers to provide their employees "with a place of employment [which is] free from recognized hazards that are causing or are likely to cause death or serious physical harm" (referred to as the "General Duty Clause").
An OSHA inspector has a number of compliance/enforcement options available. These include:
• finding no violation;
• issuing a Hazard Alert Letter (where OSHA determines that insufficient measures have been employed to protect workers while concluding that such insufficiencies do not rise to the level of a General Duty Clause violation, but requires that certain compliance steps be implemented); or
• issuing a citation (which is often accompanied by a fine and various required compliance changes).
To establish a violation under the General Duty Clause, OSHA must show that the employer failed to keep the workplace free of a recognized hazard that was causing or likely to cause death or serious physical harm, and there was a feasible and useful method to address it.
Should your practice encounter an OSHA inspection addressing compliance with these or other guidelines, standards or regulations, contact your legal advisor right away. Qualified legal counsel can assist in formulating a response to OSHA inquiries, engage with the OSHA inspector and guide your practice in deciding what next steps should be taken.
John C. Ivins, Jr. is a partner and leader of the Healthcare Practice at Richmond, Va.-based Hirschler Fleischer. Ivins routinely represents physicians and medical practices on a variety of privacy, operational, and licensing matters. He also represents hospitals and healthcare systems, advising on various operational, compliance and staffing issues, including peer review, credentialing and handling Fair Hearings. He may be reached at [email protected].