September 28, 2020

Volume X, Number 272

September 28, 2020

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September 25, 2020

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D.C. Circuit to Take on OSHA Authority to Regulate Workplace Violence

On Jan. 9, 2020, the U.S. Court of Appeals for the District of Columbia heard oral argument in BHC Nw. Psychiatric Hosp. LLC v. Sec’y of Labor, a case that asks the court to decide how far the Occupational Safety and Health Administration (OSHA) can go when directing a hospital to put in place measures to protect nurses and other staff members from patient attacks.

The hospital appealed to the D.C. Circuit, challenging an order from the Occupational Safety and Health Review Commission (Commission), in which Chief Judge Covette Rooney found that the hospital breached the OSHA general duty clause because (1) its measures for addressing patient on staff violence were insufficient, and (2) the hospital had not taken feasible measures to materially reduce the recognized hazard.

The OSHA general duty clause, Section 5(a)(1), is a catchall clause that requires an employer to furnish its employees a place of employment free from recognized hazards that are causing or likely to cause death or physical harm. Although the general duty clause has been used to cite a wide spectrum of hazards, from killer whales to excessive heat exposure, here, on appeal, the hospital argued to the D.C. Circuit that it was not on notice of the bounds of enforcement under the general duty clause.

The Department of Labor (DOL) responded with factual support that the hospital should have been on notice of the potential hazard. The case stemmed from a 2016 OSHA investigation, triggered by an anonymous employee complaint, which alleged that patient on staff violence was an ever-increasing problem. Following an inspection, OSHA discerned that the hospital had several safety protocols in place, yet hospital employees told the inspectors that the measures were neither properly communicated nor implemented. This finding was ultimately part of the OSHA citation and notice issued against the hospital; OSHA concluded that there had been at least 51 violent incidents of patient on staff violence in the past year.

Employers, particularly those in health care and social service settings, are watching this case closely. This comes as many are already grappling with addressing the 2019 harbinger case In Sec’y of Labor v. Integra Health Management, Inc., in which the Commission affirmed a citation issued to a social services provider after one of its employees was fatally stabbed by a mentally ill client. Further, there is pending legislation in Congress (H.R. 1309) to mandate that DOL/OSHA enact rules to address workplace violence in health care and social services settings, as well as sectors conducting similar activities. This comes as many states, including California, Illinois, Minnesota, and Oregon, have already passed their own regulatory schemes to address these serious concerns that require a significant compliance review and thoughtful plan of approach.

©2020 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume X, Number 23

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About this Author

Michael Taylor, Greenberg Traurig Law Firm, Northern Virginia, Labor and Employment, Energy Law Attorney
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Michael T. Taylor is Chair of the firm's Labor & Employment Practice's OSHA group. He focuses his practice on the representation of employers in a variety of industries regarding Occupational Safety and Health Administration (OSHA) matters across the country. Over the last fourteen years, Michael has defended scores of employers during enforcement litigation, many of which have involved a significant injury, fatality, or catastrophic event in the workplace. Michael also provides OSHA compliance counseling, OSHA inspection counseling, OSHA whistleblower representation, and OSHA due...

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Genus Heidary focuses much of her practice on environmental, health, and safety-related matters, providing both proactive compliance counseling, as well as strategic advocacy at times of enforcement litigation. She has comprehensive experience counseling clients through major industrial accidents, workplace fatalities, agency inspections, and crisis management at times of potential toxic releases. Genus works with technical experts and auditors, providing compliance counseling in relation to the development and improvement of environmental, health, and safety programs. Much of this work requires her to take the lead on internal investigations to evaluate litigation risk, as well as compliance readiness. Her portfolio also includes due diligence risk assessments of commercial deal work.

With a background in public policy and years of courtroom experience as a litigator, Genus also represents clients from a broad array of industries - including manufacturing, health care, technology, energy, real estate, and financial services - in challenges to agency rule-makings, supervisory investigations, complex litigation, and class action lawsuits, as well as civil and criminal enforcement actions brought by federal and state regulatory agencies, state attorneys general, and the Department of Justice (DOJ).  Such experience has allowed her to represent clients before agencies including the Department of Labor (DOL), Environmental Protection Agency (EPA), Consumer Financial Protection Bureau (CFPB), Office of the Comptroller of the Currency (OCC), Federal Trade Commission (FTC), and the Federal Reserve Board, or related state agencies.

Prior to becoming an attorney, Genus worked in healthcare management and health policy capacities.

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