November 20, 2017

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How OSHA Reacts to an Employer's Alleged Failure to Abate

In the fall of 2014, the Occupational Safety and Health Administration (OSHA) conducted an investigation of a treatment center which provided behavioral health care for adolescents and adults in the form of inpatient and partial hospitalization. OSHA determined that the treatment center violated Section 5(a)(1) of the Occupational Safety and Health Act (the “Act”), commonly known as the General Duty Clause, by not having a workplace violence prevention program in place, and assessed a proposed penalty of $7,000 to the employer. An additional $2,000 in penalties were proposed for alleged record keeping and fire safety violations. The employer filed a notice of contest.

As often happens when a notice of contest is filed, OSHA and the employer reached a settlement, resulting in a reduction of the proposed penalties to $4,500. The settlement also memorialized the employer’s abatement obligations – which included the implementation and maintenance of a stand-alone written Workplace Violence Prevention Program. The parties agreed that abatement would occur by November 23, 2016, which was 180 days after the parties reached their settlement.

On December 19, 2016, a patient at the treatment center punched and scratched an employee, resulting in injuries that were serious enough to warrant 14 missed days of work.

When OSHA performed a follow-up inspection in 2017, it learned of the December 2016 incident, as well as two more incidents that occurred after the first of the year. Because of the recurrence of violence in the workplace, OSHA concluded that the employer had failed to adequately abate the workplace violence violation and issued a new citation, with a daily penalty assessed for each day that the violation remained unabated. With the maximum daily penalty in 2016 set at $12,600, what originally was a $9,000 penalty had grown to $197,730 in proposed penalties. The employer has stated its intention to contest this citation.

The moral of the story: OSHA takes the threat of workplace violence very seriously, especially in the health care setting. According to data compiled by the Bureau of Labor Statistics, workers in the Health Care and Social Assistance sector (NAICS 62) face a substantially increased risk of injury due to workplace violence. To address this growing concern, OSHA published “Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers,” which can be accessed here. On December 7, 2016, published a request for information (RFI) seeking comments about possible rule making to specifically address workplace violence from customers/patients in a new OSHA standard. And, although the comment period for the RFI ended in April, 2017, the U.S. Government Accountability Office recently submitted a letter to Secretary of Labor Acosta with a priority recommendation that the DOL complete its study on workplace violence in health care and determine whether regulatory action is needed.

© Polsinelli PC, Polsinelli LLP in California

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About this Author

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William Robbins, Jr. brings more than 25 years of experience to his work on behalf of employers. He currently represents employers in matters relating to union avoidance and provides assistance to companies involved in union-organizing campaigns.

Bill represents clients in all facets of management-union relations, including:

  • Labor arbitrations

  • Strikes

  • Consumer boycott management

  • Appearing before the...

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