In a Case of First Impression, OSHRC Holds that Incidents of Workplace Violence Are Citable Under the OSH Act’s General Duty Clause

The Commission’s ruling affirmed two serious citations issued to Integra Health Management, Inc. (Integra), a social services provider, following a tragic incident in which a young field employee was fatally stabbed by a mentally ill client following a home visit. The Commission reasoned that Integra had failed to adequately address the risk of an employee being physically assaulted by a client with a history of violent behavior.

Employee Stabbed By Client During Home Visit

Integra contracts with health insurers to help their insureds obtain and maintain medical care, and the company’s “service coordinators” function as the primary point of contact for their clients, who often suffer from mental illness or have criminal and violent histories. The murdered employee was a recent college graduate with no prior experience in social work or working with the mentally ill when Integra hired her as a service coordinator. After providing training to the employee on in-home and community safety, as well as how to identify potentially dangerous clients, Integra assigned the employee to complete mandatory home assessments with a client who suffered from schizophrenia. The client also had a prior criminal record that included multiple convictions for aggravated assault with a deadly weapon, of which Integra was unaware because they did not perform background checks on their clients. Nonetheless, Integra’s training materials stated that some of its clients exhibited “risk factors and high risk behaviors tending toward violence.”

Following several home visits, the employee submitted multiple reports to her supervisors in which she described disturbing behavior from the client and stated that she was uncomfortable being alone with him inside his house without another service coordinator to accompany her. She stated that the client exhibited delusional behavior that included him pretending to be his own twin brother and showing her a picture of The Last Supper, in which he identified Jesus as “[his] father,” as well as “someone else in the picture” as himself, and “a few others in the picture” as “people in the community, such as the waitress who works down the street.” Nonetheless, the employee subsequently returned alone to conduct another home visit, during which the client fatally stabbed her.

OSHA Cites Integra For OSH Act Violation; Integra Appeals

The Occupational Safety and Health Administration issued Integra a citation alleging a violation of the OSH Act’s general duty clause following the tragedy for exposing employees “to the hazard of being physically assaulted by [clients] with a history of violent behavior.” After the citation was affirmed by an administrative law judge, Integra appealed that decision to the Commission.

The OSH Act’s general duty clause requires employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” In order to prove a general duty clause violation, the Secretary of Labor must prove that (1) a condition or activity in the workplace presented a hazard, (2) the employer or its industry recognized the hazard, (3) the hazard was causing or likely to cause death or serious physical harm, and (4) a feasible and effective means existed to materially reduce the hazard.

Integra advanced three primary arguments in support of its appeal of the general duty clause citation:

• The Secretary lacked jurisdiction to issue the citation, as the general duty clause cannot be used to cite incidents of workplace violence because employers cannot be required to anticipate and prevent hazards, like violent conduct from a third party, that are “inherently resistant to prediction”;
• The Secretary failed to prove that Integra recognized the possibility of a service coordinator being physically assaulted during an in-person meeting with a client as a potential hazard; and
• The Secretary could not show that its proposed methods of abatement “would be effective in materially reducing the incidence” of the alleged hazard.

Commission Rejects Integra’s Arguments

The Commission disagreed, rejecting each of Integra’s arguments and holding in a decision of first impression that workplace violence can be cited under the OSH Act’s general duty clause. Although all three Commissioners joined in the ruling, they each issued their own opinions providing different rationales for the ultimate decision.

First, the Commission rejected Integra’s jurisdictional argument, holding clearly that incidents of workplace violence are citable under the general duty clause and subject to the standard burden of proof. In doing so, the Commission rebuffed Integra’s claim that workplace violence should be distinguished from other types of general duty clause violations because “the violent conduct of a third party is an inherently unpredictable act.” Rather, the Commission found that workplace violence is a hazard appropriately covered by the general duty clause where there is a “direct nexus” between the type and physical setting of work performed by employees and the risk of workplace violence. Here, because Integra’s service coordinators primarily performed their work in the homes of clients identified as having certain “risk factors and high risk behaviors tending toward violence,” those conditions were met. Commissioner Sullivan, in a concurring opinion, reached the same conclusion but framed the appropriate test as whether the hazard is reasonably foreseeable. If so, the hazard is citable under the general duty clause and capable of recognition by an employer.

Second, the Commission determined that the Secretary had adequately proved a general duty clause violation because Integra clearly recognized the hazard of physical assault against its service coordinators by its clients. The Commission relied heavily on evidence in the underlying record of the safety training provided to the murdered employee, the concerns she raised in the reports provided to her supervisors, and other threatening incidents previously reported to Integra supervisors. In other words, because Integra took “some safety measures,” such as training, to protect against the hazard of physical violence, that fact in addition to evidence of specific supervisors with direct knowledge of threatening incidents, was enough to demonstrate recognition of the hazard.

Third, the Commission found that the Secretary’s proposed methods of abatement (which are listed in the “Recommendations for Employers” section below) were feasible and could have materially reduced the incidence of workplace violence. In doing so, the Commission credited the testimony of the Secretary’s expert witness, who stated that the abatement methods proposed by the Secretary would have been effective in materially reducing the risk and consequences of workplace violence. The Commission also relied on evidence that Integra implemented many of the abatements recommended by the Secretary while the case was still pending. The abatement methods ultimately implemented by Integra included the creation of a standalone written workplace violence prevention program, implementing new measures to determine the behavioral history of new clients, and more consistent methods of communicating information about clients with assaultive behavior problems to service coordinators.

Recommendations for Employers in the Health Care Industry

The Integra decision is significant because it eliminates any doubt that although OSHA does not have a specific standard addressing workplace violence, employers are on notice of their responsibility to address the risk of violence under the general duty clause. In particular, employers in the health care industry are advised to conduct a review of their safety policies, procedures, and training programs to ensure that they adequately address the risk of physical assault by patients. Employers in the health care industry should consider adopting policies that are likely to reduce employee exposure to violence, for example:

• Adopting written policies on workplace violence and providing training to employees to ensure that they know what steps they should take to prevent the risk of violence in the workplace and address it when it occurs;
• Conducting initial patient evaluations designed to identify potentially violent patients and adopting procedures to ensure that information about such patients is communicated to all employees who are likely to come into contact with that patient;
• Training employees on techniques for how to safely approach patients who may become aggressive, as well as on response procedures for when those techniques fail to work;
• Debriefing all employees on incidents of violence after they occur so that lessons can be learned about how to handle any similar incidents in the future;
• Adopting a “buddy system” so that employees never interact with a patient identified as posing a risk of violence on their own.

Regulatory Changes – and Broader Enforcement – On the Horizon?

The Integra decision is also likely to renew calls for OSHA to adopt a standard that addresses workplace violence. In January 2017, OSHA initiated a rulemaking process to issue a workplace violence prevention standard that applied to healthcare and social service workers, but the agency has not taken any further steps to advance the process. In the meantime, health care industry employers in states with OSHA state plans should expect to see them follow California’s lead by adopting their own workplace violence standards in response to the inaction at the federal level. (Arent Fox discussed California’s first-in-the-nation regulation specifically addressing the threat of workplace violence in healthcare facilities previously on Health Care Counsel Blog.)

Employers can also expect that OSHA will begin to cite employers in other industries for incidents of workplace violence where it is reasonably foreseeable that their employees may be subjected to violence in the course of performing their work—for example, companies that provide guards in a correctional facility. These employers should consider what steps they can take to eliminate or materially reduce the risk of workplace violence to their employees.