January 19, 2021

Volume XI, Number 19

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January 18, 2021

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Workplace Violence – Failure Results In Hefty Fine For Home Health Provider

While there is no federal law establishing an employer’s duty to prevent workplace violence, an employer has a duty to provide a safe working environment under the Occupational Safety and Health Act, which regulates workplace health and safety. Section 5(a), the General Duty Clause of the OSH Act, requires an employer to provide a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees. The Occupational Safety and Health Administration (OSHA) has used that language to require healthcare employers to protect employees from workplace violence, including threatening patients.

A citation issued this past summer by OSHA underscores the importance of having effective workplace violence policies and procedures. Epic Health Services (EHS), a pediatric home health and therapy services provider, was saddled with a citation for having willfully “failed to protect employees from life-threatening hazards of workplace violence” and for failing to provide “an effective workplace violence prevention program.”

An EHS employee reported that she was the victim of a sexual assault by a home care client while working in the client’s home. An OSHA investigation of the reported incident found that prior to the reported assault, EHS had received reports of verbal, physical and sexual assaults on other employees as well as a report that an employee was working in a home in which domestic violence occurred. The incident, combined with the other reports, contributed to a finding that EHS “had exposed employees to the risks of physical assaults as they provided nursing care services to both clients and family members.” In addition, OSHA found that EHS did not provide a mechanism for reporting “threats or incidents of violence.” Based on the facts, OSHA found a willful violation and recommended a maximum fine of $98,000. OSHA also provided recommendations to EHS for ways to address workplace violence issues.

OSHA has addressed workplace violence in health care and social services settings with guidance and enforcement activities. Last year, OSHA released updated Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers (OSHA 3148-04R (2015)). These Guidelines recommend that health care providers develop a Workplace Violence Assessment and Prevention Plan that includes:

  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 health training for all personnel; and

  5. Record keeping and evaluation.

Employers have a keen interest in making sure that their employees are able to safely discharge their work duties and responsibilities. Safety issues and concerns often multiply where work is performed in a client’s home or other place not under the direct control of the employer. The Guidelines provide a framework for addressing these issues.

While they are only “advisory,” the Guidelines are likely enforceable by OSHA under the “safe place” requirements of the Occupational Safety and Health Act General Duty Clause. Health care employers should review and work to implement the recommendations detailed in the Guidelines.

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Copyright © 2020 Godfrey & Kahn S.C.National Law Review, Volume VI, Number 272
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About this Author

Jon Anderson Labor & Employment Attorney
Chair, Labor & Employment Practice Group

Jon Anderson is the Madison office managing partner and a shareholder in the Labor & Employment Practice Group, a team he led for over ten years. He represents management in all aspects of human resource, labor, and employment law matters. In addition, Jon is a member of the firm’s Health Care Practice Group, representing health care institutions and hospital systems in their employment and collective bargaining matters. Jon also has a robust practice representing business cooperatives.

Jon brings years of experience and a practical no-nonsense approach to advising employers in...

608-284-2610
Thomas O'Day, Health Care Attorney, Godfrey & Kahn Law Firm
Special Counsel

Tom O’Day is a member of the Labor & Employment and Health Care Practice Groups in the Madison Office. Tom’s practice focuses on advising and representing employers in every aspect of labor and employment law, with a particular emphasis in employment law in health care settings.

Tom provides counseling to employers on the full range of human resource and employment law challenges confronted by employers, including the hiring and firing of employees, drafting and enforcing restrictive covenant agreements, litigating federal and state...

608.284.2228
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