Violence Prevention in the Health Care Workplace

In recent years, health care employers have faced an unprecedented and complicated workforce management challenge.

The incidence of workplace violence against health care workers is increasing in both frequency and acuity, a trend exacerbated by the COVID-19 pandemic. The impacts are significant—state and federal Occupational Safety and Health Administration (OSHA) enforcement actions, decreased employee retention, and collective bargaining pressures, to name a few.

Employees in the health care and social assistance sector face workplace violence far more than those in other industries. While problems with a current or past employee or domestic abuser entering a workplace are familiar concerns, violence in the health care context often comes from a patient or a close relation of the patient facing a challenging illness in unfamiliar surroundings. While graver incidents like mass shootings continue to make headlines, it is perhaps the daily threats and assaults on health care workers that have the greatest impact. Those common occurrences of workplace violence often go unreported, as the employee considers them simply part of the job. This makes it that much harder for employers to address the safety challenges. 

With recently enacted state and proposed federal legislative responses to this growing concern, many health care employers and facilities are now required to take specific steps including the creation of workplace violence prevention plans, site assessments, training, recordkeeping, and more. Compliance with safety regulations and an affirmative, proactive approach are essential. While violence at a work site cannot always be prevented, the risks can be lessened through an appropriate strategy.

Epstein Becker Green can assist businesses of all sizes, from startups to established companies, in mitigating the risk of workplace violence while staying compliant. In addition to our cross-disciplinary legal and regulatory experience and our deep industry knowledge, we are skilled at counseling health care clients on workplace violence prevention and response, as well as defending health care facilities in agency enforcement actions and private lawsuits involving workplace violence. We offer strategic and informed advice to help clients follow the best course of action when complying with applicable laws and regulations, preparing a workplace violence prevention program, and responding to incidents.

Compliance and Prevention

Employers have a general duty to provide a safe workplace for their employees. A growing number of state laws directly address workplace violence, both generally and in the health care context. Many states require employers to affirmatively implement a workplace violence prevention program, with involvement by safety committees and including robust training requirements. We support employers in designing a comprehensive program that includes management guidance and worker participation, worksite analysis and hazard identification, hazard prevention and control, safety and health training, recordkeeping, and program evaluation. In addition, federal rules are on the horizon—whether a new standard by OSHA in the health care and social service settings or a federal law that fills that gap. Our attorneys are keeping a close watch and are ready to assist.

We develop workplace violence prevention policies and plans that meet compliance requirements at the state and federal levels and have proven to be effective in addressing workplace violence in hospitals and health care facilities around the country. Additionally, because violence prevention is an ongoing effort, our attorneys regularly advise clients on workplace security, behavioral health, ergonomics, and related issues. Examples:

• Represented an acute care psychiatric facility regarding a citation from a state agency alleging a lack of compliance with regulations requiring workplace violence prevention programs.
• Advised and guided a behavioral health care provider through the development and implementation of a multistate program for workplace violence prevention.

Response

Employers need to respond quickly when a violent incident occurs. Epstein Becker Green attorneys also spring into action, helping employers manage or avert liability and media scrutiny altogether. We assist with crisis management and incident reporting to OSHA or health care regulatory authorities, represent clients during agency investigations, liaise with law enforcement, and more.

In addition, employers turn to us to review the circumstances of the incident, including whether existing controls or measures were effective and what steps to take to ensure that it does not happen again. When needed, we call on sophisticated workplace investigators from our affiliate, EBG Advisors, to assist in investigations and audits. We also help employers overcome other workforce management challenges that arise following a violent incident, including issues relating to accommodations or leaves of absence and employee burnout. Other examples:

• Defended a community hospital in an employment lawsuit brought by a nurse who was terminated for assaulting a patient.
• Frequently advise acute care hospitals and other health care providers about regulatory issues concerning patient-to-staff aggression events, including requirements for restraint, seclusion, and emergency medication.
• Defended a psychiatric hospital in a multi-week trial before the Occupational Safety and Health Review Commission involving allegations of failing to abate workplace violence events.