In the face of mounting evidence of the widespread extent of workplace violence in the healthcare and social assistance sector, OSHA announced in the Federal Register on December 7th, 2016, that it is assessing the need for “a standard aimed at preventing workplace violence in healthcare and social assistance workplaces perpetrated by patients or clients.”  The workplaces and professions affected are numerous – examples include: psychiatric facilities, pharmacies, ERs, and residential facilities; physicians, nurses, aides, social and welfare workers, home healthcare workers, security and maintenance workers.  The Agency has scheduled a public meeting for January 10th in Washington, DC. and has issued a Request for Information (RFI) with comments due on or before April 26, 2017.

Data from the Bureau of Labor and Statistics (BLS) Survey of Occupational Injuries and Illnesses shows that in 2014 workers in the Health Care and Social Assistance sector (NAICS 62) suffered workplace-violence-related injuries over 4 times higher than workers in the private sector.  Other statistics for this sector mentioned in the Federal Register include:

  • Psychiatric hospitals have incidence rates over 64 times higher than private industry
  • Nursing and residential care facilities have rates 11 times higher than private industry
  • Verbal abuse was reported by 42.8 % of respondents in a survey (Jayaratne et al., 1996)
  • In 2014, 79% of serous violent incidents reported by employers in healthcare and social assistance settings were caused by interactions with patients (BLS, 2015, Table R3, p 40)
  • 14 fatalities in 2014 and 10 fatalities in 2013 were homicides

The Agency believes these numbers are probably low for various reasons, such as a reluctance to report incidents of workplace violence, intentional/unintentional underreporting by employers, and questions about whether or not the types of injuries experienced meet OSHA’s criteria for reporting.

OSHA has provided guidelines aimed at protecting healthcare and social assistance workers since 1996.  In 2015 it released its most recent version.  Although the guidelines are comprehensive and detailed, they are guidelines and therefore not mandatory or enforceable.  Currently, OSHA has to rely on the General Duty Clause of the OSH Act to cite an employer.

The RFI is restricted to workplace violence occurring in the healthcare and social assistance sector where “workplace violence is recognized as an occupational hazard” and which “can be avoided or minimized.”  The Agency recognizes that there is a unique relationship between care providers and their patients/clients which would seem to contradict the notion that healthcare and social assistance workers experience such high levels of workplace violence.  OSHA also points to the job growth in this sector which BLS predicted would “account for almost a third of the projected job growth from 2012 to 2022.”

OSHA is seeking answers to specific questions in the RFI to help it assess the need for a standard.  These questions are set out in seven sections.  OSHA seeks answers to questions about things such as the frequency of incidents of workplace violence, where they occur and to whom, the common risk factors, what current steps are helping, and the cost and feasibility involved.

On its website, OSHA “refers to “workplace violence” as any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site.”  However, OSHA has said in Question III.3 that it “has no intention of including violence that is solely verbal in a potential regulation.” Additionally, although OSHA identifies four types of workplace violence based on the relationship between the perpetrator and the victim, the RFI is limited to Type II which covers customer/client/patient violence.  It is also limiting its assessment of workplace violence risk to BLS’s category “Intentional Injury by Other Person” as opposed to “Unintentional or Intent Unknown.”

To read more, or find out how to submit comments and additional materials, click here.

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Photo of Tressi L. Cordaro Tressi L. Cordaro

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state…

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state OSHA enforcement agencies.

Ms. Cordaro has advised employers faced with willful and serious citations as the result of catastrophic events and fatalities, including citations involving multi-million dollar penalties. Ms. Cordaro’s approach to representing an employer cited by OSHA is to seek an efficient resolution of contested citations, reserving litigation as the option if the client’s business objectives cannot otherwise be achieved. As a result, she has secured OSHA withdrawals of citations without the need for litigation.

Ms. Cordaro’s unique experience with government agencies involved in OSHA enforcement enables her to provide employers with especially insightful guidance as to how regulators view OSHA compliance obligations, and evaluate contested cases.

Ms. Cordaro served as the Presidentially-appointed Legal Counsel and Special Advisor to the past Chairman and Commissioner Horace A. Thompson, III at the U.S. Occupational Safety & Health Review Commission (OSHRC) in Washington, DC, the agency that adjudicates contested federal OSHA citations. As the Commissioner’s chief counsel, Ms. Cordaro analyzed all cases presented to the OSHRC and advocated the Commissioner’s position during decisional meetings.

In addition, Ms. Cordaro worked at the U.S. Department of Labor’s Occupational Safety & Health Administration developing OSHA standards, regulations and enforcement and compliance policies, with emphasis on the construction industry. She has in-depth experience on technical issues including, in particular, issues related to cranes and derricks in construction.