EDs Face OSHA Citations for Failing to Prevent Violence
August 1, 2023 4 minutes read
By Stacey Kusterbeck
If a violent patient attacks ED staff, the immediate concern is everyone’s physical safety. But what about the aftermath? Lawsuits, bad publicity, staff turnover, and plummeting morale all are possible longer-term consequences of violence. In addition, hospitals face possible citations by the Occupational Safety and Health Administration (OSHA).
Recently, OSHA cited a Texas hospital for failing to adequately protect employees from violence, after a patient assaulted a security officer who lost consciousness and was subsequently hospitalized.1,2 The hospital had not created policies and procedures to protect employees from assault by patients who had exhibited violent behavior, according to the OSHA citation.
Also, according to OSHA, there were 15 other incidents involving employees who were injured by aggressive patients in just one year at the same hospital. The OSHA citation suggested leaders implement more rigorous patient assessments and provide frequent employee training on recognizing warning signs and on de-escalation techniques. The agency called on leaders to add a workplace violence coordinator and ensure staff can call for help if needed. Finally, OSHA suggested adding a system to track and investigate violent incidents.3
“Currently, there are no specific OSHA standards for healthcare providers to follow to prevent violence,” says Weathers P. Bolt, JD, a partner in the Mobile, AL, office of Starnes Davis Florie.
However, employers (including hospitals) are required to provide a safe workplace under OSHA’s General Duty Clause.4 “It is largely left to each ED to decide what precautions they need to take,” Bolt says.
Generally, however, each department should assess for potential workplace violence, put a plan in place to address those hazards, and train employees on the resources available to minimize the hazard or de-escalate a situation.
OSHA is expected to issue a specific workplace violence regulation soon. Meanwhile, Bolt says OSHA will be looking for EDs to have assessed and planned for potential workplace violence — specifically, patient-on-staff violence. “OSHA’s definition of violence is broad, and could even include unintentional hitting or flailing by a demented patient,” Bolt notes.
Thus, leaders must address the full spectrum of potential violence that could occur in their departments. “This ranges from active shooters with no definite target, to uncooperative patients who don’t intend to harm anyone but are at high risk of injuring an employee,” Bolt says.
OSHA can decide to investigate a hospital based on an employee complaint, media coverage, or the hospitalization or death of an employee (which must be reported directly to OSHA). “An employee does not necessarily have to be injured for OSHA to start an inspection or issue a citation,” Bolt adds.
To legally support a General Duty Clause citation, OSHA must show that a hazard existed (e.g., an ED patient was predisposed to violence because of a diagnosis or history of violence). The agency must show the employer failed to recognize the hazard, and that the hazard likely was to cause death or serious physical harm. Finally, OSHA must determine that a feasible method to correct the hazard was available.
Those specific criteria aside, there is agreement among specialty organizations, researchers, and the media that workplace violence should not be tolerated. OSHA recently convened a panel to address workplace violence in healthcare, including EDs.5 These are strong clues indicating EDs should be fully prepared to be scrutinized by OSHA.
“OSHA is looking to prove a point on this issue, and the rules are somewhat amorphous,” Bolt warns. “I expect we will see plenty of bad citations, along with legitimate ones.”
As an example of a “bad” citation, OSHA could cite a hospital for failing to do enough to correct a hazard that was impossible to predict. To guard against this possibility, hospitals should be able to demonstrate the ED took reasonable steps to assess potential hazards and had taken precautions. “Even if they were not successful in preventing the incident in question, the ED might be able to challenge OSHA’s argument,” Bolt explains.
If OSHA does investigate an ED after a violence incident, OSHA will cite “any and all failures by the hospital identified during the inspection,” warns Matthew Horn, JD, a partner at Amundsen Davis.
In Horn’s experience, he says OSHA is likely to cite hospitals for failure to assess workplace violence-related hazards, along with failure to review all workplace violence incidents to identify corrective actions. The agency also could issue citations for failure to implement protective equipment (e.g., alarm systems and barriers for staff) and lack of training for all employees on workplace violence prevention.
Any of these failures would be a red flag that would catch the attention of OSHA and lead to a probable citation for the ED. “But the biggest red flag would be a combination of all four,” Horn cautions.
It is especially problematic if there had been incidents of violence, but leaders never completed a hazard assessment, never trained employees, and never implemented mitigation measures. “If there is an injury to an employee, OSHA usually takes a more aggressive approach in issuing citations, especially if there is an employee fatality,” Horn reports.
For EDs, the recent citation of the Texas hospital is a strong indication of what is coming. Thus, this is an excellent time for leaders to proactively address workplace violence in a reasonable and systematic way. “The better prepared an ED is, the more likely they are to survive an inspection without a citation — or, if a citation is issued, to successfully challenge the citation,” Bolt says.
REFERENCES
1. Zuvanich A. Texas Children’s Hospital cited by OSHA over string of employee assaults by patients. Houston Public Media. May 11, 2023.
2. U.S. Department of Labor. Department of Labor finds Texas Children’s Hospital failed to protect employees after security guard suffers serious assault by patient. May 10, 2023.
3. U.S. Department of Labor. Letter to Texas Children’s Hospital. May 9, 2023.
4. The General Duty Clause. Section 5(a)(1) of the Occupational Safety and Health Act of 1970.
5. U.S. Department of Labor. The SBREFA panel for a potential standard to address prevention of workplace violence in healthcare and social assistance sectors. May 1, 2023.
OSHA cited a Texas hospital for failing to adequately protect employees from violence, after a patient assaulted a security officer who lost consciousness and was subsequently hospitalized. The agency noted the hospital had not created policies and procedures to protect employees from assault by patients who had exhibited violent behavior.
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