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OSHA and Its Increasing Focus on Workplace Violence

By on July 19, 2016 in OSHA with 0 Comments

New Jersey employers are required to conform to safety and health standards issued by the Occupational Safety and Health Administration (“OSHA”) of the U.S. Department of Labor.  They are also required to comply with the so-called “General Duty Clause”, which is found at §5(a) (1) of the OSH Act (“the Act”).  The crux of the obligation imposed by the General Duty Clause is maintain the workplace free from “recognized hazards.”

OSHA defines the phrase “workplace violence” broadly to mean “violence or the threat of violence”.  Applying this definition, OSHA estimates that there are approximately 2,000,000 incidents of workplace violence in America per year.

The current yearly average of workplace fatalities in the U.S.A. is approximately 4,600, of which about nine or ten percent are homicides.  Homicide is the fourth highest cause of workplace fatalities.

Given the information in the two preceding paragraphs, it is unsurprising that OSHA has been taking a far greater interest in the topic of workplace violence.   This interest notwithstanding, OSHA has not promulgated a standard to address this issue.  Rather, it has: (1) issued a Factsheet with suggestions how to reduce the risk of workplace violence; (2) included a workplace violence section in its Field Operations Manual, which provides guidance to its personnel who conduct inspections of workplaces; (3) issued Guidelines for certain industries such as health care and social service; and (4) issued approximately 23 General Duty Clause citations to employers whose violence avoidance policies and practices, if any, were perceived as inadequate (permitting the existence of one or more alleged recognized hazards).

A New Jersey employer has been cited for a workplace violence General Duty Clause violation.  Specifically, health care workers at Bergen Regional Medical Center in Paramus, one of the nation’s largest hospitals with over 1000 beds, in a three month period experienced eight separate incidents including being bit, punched, kicked and threatened by patients.  This lead to a worker complaint to OSHA, an inspection and the issuance of a §5 (a) (1) citation.  This matter was informally resolved without a hearing.

That was not the outcome in a subsequent General Duty Clause workplace violence case, which is currently pending before the OSA Review Commission (“Commission”).   In Secretary of Labor v. Integra Health Management, Inc., the employer had professional social workers conduct mental and physical health assessments on behalf of insurers at the patients’ individual residences.  Tragically, one of the team of social workers was stabbed to death at a patient’s home.  The patient had a history of violent behavior and mental illness.

Intregra Health contested the General Duty Clause citation and the matter was tried in a hearing before an Administrative Law Judge (“ALJ’) for the Commission.  Thereafter, he found that OSHA had proven a §5(a) (1) violation.  In so doing, the ALJ concluded that the “workplace” could include a location over which the employer had no control.  Intrega Health asked the Commission to review the ALJ decision.

On September 18, 2015, the Commission took the highly unusual, but not unprecedented, step of inviting non-parties to file Amicus Curiae (friend of the Court) briefs.  The importance of this case is shown by those who in fact filed such briefs, including the U.S. Chamber of Commerce and the Service Employees International Union (“SEIU”).  Impressive arguments are included in the Amicus and party briefs.

A material part of the briefs, both party and Amicus focused on the unique factual context of where the workplace violence occurred.  Employer briefs point out that face-to-face in home interactions are critical to Intregra’s business and Integra does not control the patients’ residences.  They also stress that the Act itself is focused on conditions inherent in a workplace environment where an employer has practical means to minimize and abate a hazard.

Briefs in support of the ALJ decision point out that there is a wealth of learned writing preceding the issuance of OSHA’s guidelines that confirm the health risk to workers from violence and advocate for the establishment of legal requirements to mitigate this risk.  Indeed, Intregra used one of these learned sources as a basis to train its’ personnel.  Seen in this light, those supporting the OAL decision, suggest that OSHA’s guidelines simply mimic preexisting learned writing, and, thus, Courts should defer to OSHA’s guidelines.

The Integra case has been pending for almost a year.  The date for Commission decision is not known.  Regardless of the outcome of the Commission decision, further appeal is likely, possibly up to the Supreme Court. As this is the first fully litigated OSHA workplace violence case, it may well set national precedent on this topic.

Mentioned above is that OSHA has issued a Factsheet on Workplace Violence. This is a short and helpful primer on the subject and a valuable short resource to employer representatives, including safety and health and human resource professionals, as well as attorneys.   The factsheet offers some common sense suggestions; the outcome of Integra could convert these suggestions to legal obligations.

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