A new focus for enforcement agencies?
Last fall, the Centers for Medicare and Medicaid Services (“CMS”) published a memo reminding hospitals and other Medicare-certified health care entities of their regulatory obligation to maintain a safe setting for patients, residents and staff. CMS’s action comes at a time when violence in health care settings is on the rise. The Occupational Health and Safety Administration (“OSHA”) has taken notice, too. Recognizing that health care professionals are uniquely vulnerable to workplace violence, OSHA is reportedly working on a new regulatory standard designed to ensure health care employers provide safe workplaces for their staff.
Workplace violence a recognized hazard in health care industry
Health care workers are uniquely and disproportionately at risk of workplace violence. Citing an April 2020 Bureau of Labor Statistics fact sheet, CMS notes in the Memo that health care workers accounted for 73% of all nonfatal workplace injuries and illness due to violence in 2018. More troubling is that percentage has been steadily increasing for at least the past 10 years.
According to OSHA, the rate of serious workplace violence incidents in the health care industry was four times higher than in the private industry as a whole from 2002 to 2013. OSHA responded to this disproportionately high rate by developing and publishing violence prevention guidelines for health care and social services workers in 2015. The agency routinely makes violence prevention a focus of workplace inspections. OSHA inspectors are trained to request evidence that health care employers understand the various safety risk factors inherent in the health care industry and that they provide adequate education and training to their staff.
New federal legislation to protect health care workers may be on its way, as well. Specifically, bipartisan legislation called the Safety from Violence for Healthcare Employees Act, which is modeled after similar legislation applicable to the airline industry, would provide enhanced criminal penalties for those who knowingly assault or intimidate health care workers. These measures have been applauded by health care industry associations, nursing unions and worker safety advocates.
Proactive approach needed
Workplace violence has long been a problem for the health care industry, and the pandemic and related staffing challenges have almost certainly exacerbated the situation. In addition to risks of citations and penalties from enforcement agencies like CMS and OSHA, health care entities that are unable to demonstrate a clear commitment to protecting their staff will be more susceptible to union organizing and staff attrition—something few health care employers can afford at this time.
Beyond threats of physical violence, health care employers should be mindful that they are legally obligated to protect their employees from workplace harassment and sexual assault. This extends beyond unlawful harassment by employees and includes harassment by visitors, patients and residents. Failure to take reasonable preventative and corrective actions in this area can result in significant liability under state and federal employment discrimination laws.
Health care employers face many challenges today, but none are more important than providing a safe setting for patients and staff. Now is the time to assess policies and procedures in this area to ensure they are aligned with applicable agency expectations.
For example, both CMS and OSHA expect health care employers to have a process for identifying patients who exhibit violent behaviors toward others and to be able to explain what steps they are taking to minimize those risks. Both agencies also expect health care employers to provide education and regular training to staff regarding environmental safety risks and what policies and procedures are in place to protect staff.
Making a firm, genuine and visible commitment to a culture of safety for patients and staff will significantly reduce legal risks. It will also very likely enhance patient satisfaction, improve patient care, boost employee morale and reduce staff attrition.
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Jonathan Bumgarner is an attorney with Hall Render