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All in a Day's Work® - Insights on Labor & Employment Law

Workplace violence – failure results in hefty fine for home health provider

This past summer, attorneys from Godfrey & Kahn's Health Care Practice Group and Labor, Employment & Immigration Practice Group held a series of roundtable discussions, one of which focused on threatening patients in the health care workplace. The issue is one of many hot topics covered by the teams' roundtable series, and the issue of threatening patients has continued to remain hot.

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.

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.

For more information on workplace violence, threatening patients or any other hot topic in health care or labor and employment, please contact Godfrey & Kahn. To stay up to date on these and other labor and employment law issues, subscribe today to receive client updates, seminar announcements and more from our Labor, Employment & Immigration Practice Group.

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