Category Archives: OSHA

November 16, 2016

OSHA Clarifies Discipline, Retaliation and Drug Testing Commentary

linton_mBy Matt Linton

When the Occupational Safety and Health Administration (OSHA) released its 2016 final rule requiring the electronic reporting of workplace injury and illness reports, it included controversial provisions on discriminatory discipline, retaliation, and even post-incident drug testing by employers. The uproar was instantaneous, with industry groups quickly filing lawsuits challenging OSHA’s authority to enforce the rule. Originally scheduled to go into effect on August 10th, the effective date for the new anti-retaliation rule was pushed back by OSHA until November 1st, and more recently, until December 1st.

In the interim, Dorothy Dougherty, OSHA’s Deputy Assistant Secretary, issued an interpretation memorandum designed to explain the anti-retaliation and injury reporting procedures in more detail. The interpretation may help clarify what your organization must do in order to comply with the final rule – even if it doesn’t make the rule more palatable.

Reasonable Procedures For Employees To Report Workplace Injuries/Illnesses 

An employer violates OSHA’s new final rule if it either fails to have a procedure for employees to report work-related injuries or illnesses, or its reporting procedure is unreasonable. OSHA states that this requirement is not new, as it was implicit in the previous version of the rule. But now, it is an explicit employer requirement.

OSHA considers a reporting procedure to be reasonable if it is not unduly burdensome and would not deter a reasonable employee from reporting an injury or illness. Examples of what it considers reasonable and unreasonable are as follows:

Reasonable

  • Requiring employees to report a work-related injury or illness as soon as practicable after realizing they have a reportable incident, such as the same or next business day, when possible
  • Requiring employees to report work-related injuries or illnesses to a supervisor through reasonable means, such as by phone, email or in person.

Unreasonable

  • Requiring ill or injured employees to report in person if they are unable to do so
  • Disciplining employees for failing to report “immediately” if they are incapacitated because of the injury or illness
  • Disciplining employees for failing to report before they realize they have a work-related injury that they are required to report
  • Unnecessarily cumbersome or an excessive number of steps to report a work-related injury or illness

In short, if your procedure allows employees to report workplace injuries and illnesses within a reasonable amount of time after they realize they have experienced a reportable event, and the procedure does not make employees jump through too many hoops, it will be reasonable and comply with the final rule.

Anti-Retaliation Provision Explained

Retaliating against employees for reporting work-related injuries or illnesses has long been unlawful. To issue a citation under section 1904.35(b)(1)(iv), OSHA must have reasonable cause to believe that an employer retaliated against an employee by showing:

  1. The employee reported a work-related injury or illness;
  2. The employer took adverse action against the employee (i.e., action that would deter a reasonable employee from accurately reporting a work-related injury or illness); and
  3. The employer took the adverse action because the employee reported a work-related injury or illness.

As in most employment retaliation cases, the third element on causation is often the toughest to prove. The determination is made on a case-by-case basis, depending on the specifics facts in any particular case.

OSHA has focused its commentary primarily on three types of potentially retaliatory actions —  discipline policies, incentive programs, and post-accident drug testing. OSHA’s recent interpretation helps shed light on how employers should address these three issues to avoid a citation for a violation of the anti-retaliation rule. Read more >>

October 24, 2016

OSHA Issues Final ACA Retaliation Complaint Procedures

linton_mBy Matthew Linton

The Occupational Safety and Health Administration (OSHA) published its final rule establishing procedures and time frames for handling whistleblower complaints under the Affordable Care Act (ACA). The ACA protects employees from retaliation for raising concerns regarding conduct that they believe violates the consumer protections and health insurance reforms found in Title I of the ACA. It also protects employees from retaliation for receiving Marketplace financial assistance when purchasing health insurance through an Exchange. 

“This rule reinforces OSHA’s commitment to protect workers who raise concerns about potential violations of the consumer protections established by the Affordable Care Act or who purchase health insurance through an Exchange,” said Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health.

OSHA’s Affordable Care Act fact sheet provides more information regarding who is covered under the ACA’s whistleblower protections, protected activity, types of retaliation, and the process for filing a complaint and is available here.

Notably, the ACA’s whistleblower protections also provide for a private right of action with de novo review in U.S. District Court to the complaining individual if the agency does not issue a final decision within certain time limits.

July 21, 2016

Wyoming’s New Workplace Safety Division: What Employers Need to Know

6a013486823d73970c01b8d207db1d970c-320wiBy Trey Overdyke 

In early May, the Wyoming Department of Workforce Services (DWS) announced the launch of a new unit of safety advisers offering free health and safety consultations to Wyoming employers upon request. Does the launch mean Wyoming employers will soon have an additional layer of occupational safety and health staff to worry about? In this article, I will try to read the tea leaves and offer my perspective.

Focus on Injury Prevention, Workers’ Comp Trends 

The DWS’s standards and compliance staff, in consultation with Governor Matt Mead, recently created the Workers’ Compensation Safety and Risk Unit (WCSRU). According to DWS Director John Cox, the new unit represents a “reorganization” that is designed to provide more employers safety consultations and offer the potential for lower workers’ compensation premiums.

The WCSRU is composed of nine recommissioned Wyoming Occupational Safety and Health Administration (WOSHA) consultation staff members. The WCSRU will focus on conducting workplace health and safety surveys without the risk of fines or penalties. The unit is also expected to offer detailed analysis of workers’ comp data to assist in identifying injury trends and developing best practices for preventing workplace injuries and illnesses.

Wyoming Has Highest Worker Death Rate in Nation

According to the U.S. Bureau of Labor Statistics (BLS), Wyoming had 37 workplace fatalities in 2014, the latest year for which statistics are available. With 13.1 fatalities per 100,000 workers, Wyoming has the highest worker death rate in the country. The national average for 2014 was 3.3 deaths per 100,000 workers. In Wyoming, transportation incidents accounted for the largest number of workplace deaths. Workplace violence, other injuries caused by persons or animals, and falls, slips, and trips caused deaths as well.

Because of the high fatality numbers, in 2015, legislators introduced bills designed to strengthen workplace safety regulations in Wyoming. Two of the bills would have increased penalties for violations of safety rules, including raising the maximum fine for a violation that causes a worker’s death to $250,000. Another bill would have allowed Wyoming to implement workplace safety rules that are stricter than similar federal safety rules, a practice that is currently barred. None of the bills passed.

WCSRU’s Role

As you know, WOSHA is responsible for enforcing occupational safety and health standards in Wyoming. WOSHA plans to adopt all federal Occupational Safety and Health Administration (OSHA) standards. WOSHA is permitted to adopt its own standards only if there are no corresponding OSHA standards. Wyoming has unique health and safety standards covering oil and gas well drilling, servicing, and special servicing as well as a standard for anchoring drilling rigs. WOSHA imposes the same record-keeping and reporting standards required by OSHA.

So the question is, how will the WCSRU interact with and affect the work of WOSHA staff? The new unit is expected to overlap with WOSHA in some ways. Both organizations’ staff will conduct health and safety surveys for employers to identify and remedy safety hazards in the workplace. However, according to the DWS’s news release, the WCSRU will bypass “time-consuming federal requirements, which add an extra layer of reporting and operational constraints . . . and limit the services [the] DWS is able to provide.”

Bottom Line

Several Wyoming agencies will be paying close attention to the WCSRU for the next few years. We expect to hear a number of success stories from Wyoming employers in many industries. However, read the fine print before initiating a consultation. If an employer and the WCSRU disagree on a hazard abatement, there does not appear to be a clear procedure to resolve the dispute. Further, if there is a dispute, you cannot eliminate the possibility that the WCSRU will refer the issue to WOSHA for enforcement.

We will share our experiences with the WCSRU as the unit works its way across Wyoming.

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March 30, 2016

OSHA Moves Forward on Sweeping Silica Rule

Wist_C
By Cole A. Wist (formerly of Holland & Hart) and Matthew M. Linton

On March 24, 2016, the Occupational Safety and Health Administration (OSHA) issued a final rule to curb lung cancer, silicosis, chronic obstructive pulmonary disease, and kidney disease in America’s workers by limiting their exposure to respirable crystalline silica. Expected to save over 600 lives and prevent more than 900 new cases of silicosis each year, the rule reduces the permissible exposure limits (PELs) for approximately 2.3 million people in the U.S. who are exposed to the dangerous silica dust that is common in many industries.

Linton_MFirst Revision To Silica Standards In Over Forty Years

Crystalline silica is a mineral that is a component of sand, rock, concrete, brick, mortar, and other common materials. It exists in many work environments, but exposure is particularly great in operations involving construction tasks, such as cutting, drilling and crushing concrete or rocks, or in operations using sand products, such as hydraulic fracturing, glass manufacturing, foundries, and sand blasting.

PELs for silica were established more than forty years ago. The new rule requires employers in affected industries to implement controls and work practices that are intended to reduce employees’ exposure to the deadly dust particles. Although OSHA issued two standards – one for the construction industry and another for general industry and maritime employers – certain key provisions appear in both standards, including:

  • Reducing the PEL for respirable crystalline silica to 50 micrograms per cubic meter of air, averaged over an 8-hour shift
  • Requiring employers to use engineering controls and practices to keep worker exposure at or below the PEL, such as wetting down work operations, using vacuums to keep silica dust out of the air, and limiting worker access to high exposure areas (note: providing respirators is only allowed when engineering controls cannot adequately limit exposure)
  • Requiring employers to develop a written exposure control plan, offer medical exams to highly exposed workers, and train workers on silica risks and how to limit exposures
  • Mandating that employers keep records of workers’ silica exposure and medical exams
  • Providing flexibility to help employers — especially small businesses — protect workers from silica exposure by offering compliance alternatives.

Affected Industries

OSHA lists the primary industries affected by the final crystalline silica rule to include construction, oil and gas operations, railroad transportation, concrete products, foundries, dental laboratories, ready-mix concrete, glass manufacturing, paintings and coatings, refractory products, abrasive blasting, and other similar industries. OSHA estimates that approximately 676,000 workplaces will be affected.

State OSHA-Approved Programs

Within six months, states with OSHA-approved state plans must adopt silica standards that are at least as effective as the federal OSHA standards. Although many state plans adopt standards that are identical to the federal standards, states have the option of implementing even more stringent requirements designed to achieve the goal of limiting workers’ exposure to silica dust. 

Compliance Schedule

Although both standards published in the final rule take effect in just three months on June 23, 2016, affected industries have one to five years to comply with most requirements. For the construction industry, employers must comply with all obligations of the standard, except methods of sample analysis, by June 23, 2017, one year after the effective date. The deadline to comply with methods of sample analysis is extended by an additional year to June 23, 2018.

For general industry and maritime, employers, except hydraulic fracturing operations, have two years after the effective date to comply with the obligations of the standard, or until June 23, 2018, with the exception of offering medical examinations which has a longer compliance deadline.

For hydraulic fracturing operations, employers are required to comply with all obligations of the standard, except for engineering controls, medical surveillance and offering medical examinations , by June 23, 2018, two years after the effective date. Extended compliance deadlines exist for engineering controls, pushing the deadline out to 2021, because controls for respirable crystalline silica in hydraulic fracturing are still in development.

OSHA has significant additional information on the final silica rule available on its website, including fact sheets and frequently asked questions. If you are in an affected industry, you need to take action now to meet the compliance deadlines. 

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February 26, 2016

U.S. Government Wants To Protect Workers From Killer Robots

Linton_MBy Matt Linton

As posted this week on our Workplace Safety Report, the National Institute for Occupational Safety and Health (NIOSH) is concerned about the increasing complexity of robots and has proposed a number of recommendations for protecting workers interacting with robotic workers.

Readers of Isaac Asimov will immediately think of the three laws of robotics, but 21st century workplaces are nowhere near ensuring that robots uphold the famed first law of robotics:  “A robot may not injure a human being or, through inaction, allow a human being to come to harm.”  Indeed, the NIOSH article cites a fatal injury caused by an industrial robot at a German Volkswagen assembly line on June 30, 2015 where the robot gripped a worker and pressed him up against a metal plate until his chest was crushed.

The question moving forward is how do employers protect their workers from the increasing numbers of robots in the workplace? NIOSH advocates for the following measures to help protect human safety:

  1. Direct involvement of occupational safety and health professionals with the development of international standards;
  2. Workplace safety standards for working alongside and maintaining robots;
  3. Establishment of risk profiles of robotic workplaces; and
  4. Redundant safety measures to protect humans performing maintenance tasks on robot workers.

As NIOSH puts it, “[t]hese measures, and others suggested by experts, should be examined now before millions of potentially unsafe robots enter the 21st century workplace.” You can read NIOSH's full article here.

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February 9, 2016

OSHA Issues New Whistleblower Guidance

By Matt Linton

OSHA recently released a new Whistleblower Investigations Manual, clarifying its relaxed investigative standard of reasonable cause rather than the more restrictive preponderance of the evidence standard. Employers should brace themselves, as we believe the reasonable cause standard may result in OSHA finding that more cases should proceed on the merits beyond the investigative stage.

The Manual provides:

For all whistleblower statutes enforced by OSHA, the investigative standard is whether there is reasonable cause to believe that a violation occurred. This standard applies to each element of a violation.

Under the reasonable cause standard, OSHA must believe, after evaluating all of the evidence gathered in the investigation from the respondent, the complainant, and other witnesses or sources, that a reasonable judge could rule in favor of the complainant. The threshold OSHA must meet to find reasonable cause that a complaint has merit requires evidence in support of each element of a violation and consideration of the evidence provided by both sides or otherwise gathered during the investigation, but does not generally require as much evidence as would be required at trial. Because OSHA makes its reasonable cause determination prior to a hearing, the reasonable cause standard is somewhat lower than the preponderance of the evidence standard that applies following a hearing. Accordingly, OSHA’s investigation must reach an objective conclusion – after consideration of the relevant law and facts – that a reasonable judge could believe a violation occurred.

OSHA also provides new guidance on, among other things, information disclosure in order to help protect against potentially violent employees learning about previously undisclosed information during the investigation and then becoming inspired to commit violence against his or her employer.

The Manual notes:

During an investigation, OSHA will provide to the complainant (or the complainant’s legal counsel) the substance of the respondent’s response. OSHA generally will accomplish this disclosure by providing the complainant with a copy of the respondent’s response and any additional information provided by the respondent that is related to the complaint. In circumstances in which providing the actual documents would be inadvisable (for example, if OSHA believes providing the redacted versions of the documents might lead to an incident of workplace violence), OSHA, in its discretion, may provide a summary of the response and additional information to the complainant.

The Workplace Safety Report (WSR) Take

Because we believe the reasonable cause standard may result in more cases proceeding beyond the investigative stage, employers may face increased legal costs as fewer cases will be dismissed after the initial OSHA investigation. It also may increase the number of whistleblower complaints filed by employees due to the new guidance indicating that they need not establish trial-level proof of a violation in order for their complaint to move forward on the merits.

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December 28, 2015

Workplace Safety Violations Could Lead to Felony Convictions and Stiffer Penalties Under New Initiative

Looking to send a strong message to employers who fail to provide a safe workplace, the Departments of Labor and Justice  (DOL and DOJ respectively) are teaming up to investigate and prosecute worker endangerment violations, namely, violations of the Occupational Safety and Health Act (OSH Act), the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), and the Mine Safety and Health Act (MINE Act). Under a new Worker Endangerment Initiative announced on December 17, 2015, federal investigators and prosecutors will look to possible environmental crimes committed by companies in conjunction with workplace safety violations in order to seek felony convictions and enhanced penalties available under federal environmental laws. With the DOJ’s additional focus on holding individual corporate wrongdoers accountable, corporate executives could find themselves criminally and civilly liable for their role in such crimes.

It’s All About Imposing Bigger Penalties

The three federal worker safety statutes emphasized in the Endangerment Initiative generally only provide for misdemeanor penalties and monetary penalties that are significantly lower than various environmental statutes. By looking for environmental offenses to add to workplace safety violations, prosecutors will be able to seek felony convictions and enhanced penalties under Title 18 of the U.S. Code and the federal environmental laws. The stated intent is to “remove the profit from these crimes by vigorously prosecuting employers who break safety and environmental laws at the expense of American workers.”

In addition to prosecuting environmental crimes, the Environment and Natural Resources Division looks to strengthen its pursuit of civil cases that involve worker safety violations. The division believes that violations of the Clean Air Act, Resource Conservation and Recovery Act and the Toxic Substances Control Act can have a direct impact on workers who must handle dangerous chemicals and other materials as part of their work duties. 

Linking Safety Violations With Environmental Crimes

If an organization skimps on safety protections for its workers, will it also ignore environmental protections? The DOJ and DOL think so. The government points to statistics of workplace deaths and injuries, including 13 worker deaths on average in the U.S. each day, due in part to exposure to toxic and hazardous substances at work. According to John C. Cruden, Assistant Attorney General for the Justice Department’s Environment and Natural Resources Division, “employers who are willing to cut corners on worker safety laws to maximize production and profit, will also turn a blind eye to environmental laws.”

In essence, this initiative provides the government with a mechanism to turn a workplace safety investigation into an examination of a company’s environmental compliance. The plan is for the DOJ’s Environment and Natural Resources Division and the U.S. Attorneys’ Offices to work in conjunction with the DOL’s Occupational Safety and Health Administration, Mine Safety and Health Administration, and Wage and Hour Division to increase the frequency and effectiveness of criminal prosecutions of worker endangerment violations.

 Individual Accountability For Corporate Wrongdoers

The new Worker Endangerment Initiative will target companies who have committed workplace safety and environmental violations. However, due to a recent push by the DOJ to focus on holding individuals accountable for corporate wrongdoing, company executives and decision-makers could be the target of increased scrutiny during the government’s investigation.

In September 2015, Deputy Attorney General Sally Quillian Yates issued a memorandum outlining the steps that DOJ attorneys should take in investigating  corporate misconduct in order to hold more executives and managers accountable  for corporate wrongdoing. The steps, some of which represent policy shifts, are:

  1. Corporations must provide to the government all relevant facts relating to the individuals responsible for the misconduct in order to qualify for any cooperation credit;
  2. Criminal and civil corporate investigations should focus on individuals from the inception of the investigation;
  3. Criminal and civil attorneys handling corporate investigations should be in routine communication with one another;
  4. Absent extraordinary circumstances or approved departmental policy, the DOJ will not release culpable individuals from civil or criminal liability when resolving a matter with a corporation;
  5. DOJ attorneys should not resolve matters with a corporation without a clear plan to resolve related individual cases, and should memorialize any declinations as to individuals in such cases; and
  6. Civil attorneys should consistently focus on individuals as well as the company and evaluate whether to bring suit against an individual based on considerations beyond that individual’s ability to pay.

The DOJ believes holding individuals accountable for corporate wrongdoing will be effective in reducing corporate misconduct because it will deter future illegal activity, incentivize changes in corporate behavior, hold the proper parties responsible for their actions, and promote the public’s confidence in our justice system.

What This Means For Employers 

Companies subject to a workplace safety investigation can expect that their environmental compliance will also be investigated. If federal prosecutors find that a company violated environmental laws, they will pursue the stiffer criminal and civil penalties provided by those environmental statutes. In addition, because the DOJ’s renewed focus on individual accountability, employers should expect that future safety and environmental investigations will focus on individual corporate actors who engaged in or authorized the wrongdoing in order to hold such individuals criminally and civilly liable.

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October 9, 2015

Idaho Whistleblower Awarded Over $100K in Punitives After Retaliatory Discharge

Howland_PBy Pam Howland 

Firing an employee who reports that your workplace is unsafe is rarely a good idea. Firing that employee within days after the Occupational Safety and Health Administration (OSHA) issues citations and penalties based on the reported safety violations almost guarantees that your termination decision will be deemed retaliatory. An Idaho employer is finding that out the hard way after a federal judge ordered last week that it pay a discharged employee his lost wages plus $100,000 in punitive damages. Perez v. Sandpoint Gas N Go & Lube Ctr., No. 2:14-cv-357 (D. Idaho Sept. 29, 2015). 

Safety Concerns Not Rectified 

Daniel Kramer worked at the Sandpoint Gas N Go & Lube Center, owned and managed by Sydney Oskoui. Kramer informed Oskoui that employees were being exposed to unsafe working conditions that potentially violated OSHA’s safety standards. He reported that employees at the Lube Center faced the following dangerous conditions: 

  • exposed wiring near water leaks which could result in an electrical shock;
  • no nets over open automotive service bays which presented a fall hazard;
  • expired fire extinguishers;
  • no first-aid kit or eyewash station; and
  • no hard hats for employees. 

According to the lawsuit, the Lube Center did not repair or make any changes to alleviate the potentially unsafe conditions reported by Kramer. 

OSHA Investigation Confirms Safety Violations 

On February 12, 2012, Kramer notified OSHA about the unsafe working conditions at the Lube Center. Three days later, a Compliance Safety and Health Officer from OSHA’s Boise Area Office went to the Lube Center to conduct an investigation. The Officer found five violations of mandatory safety and health standards that presented a risk of death or serious bodily injury. An additional two violations that presented an other-than-serious risk were also found. 

On April 12, 2012, OSHA notified the Lube Center and Oskoui that it would be issuing citations and penalties as a result of its findings from the inspection. Just four days later, on April 16, 2012, the Lube Center fired Kramer and another employee who it suspected had also filed an OSHA complaint. 

Whistleblower Complaint Follows 

After being terminated within days of the OSHA notice of citations and penalties, Kramer filed a whistleblower complaint with OSHA alleging that he was discriminated against in retaliation for filing his safety concerns. OSHA investigated his whistleblower complaint and agreed that his termination violated the Occupational Safety and Health Act. In August of 2014, the Secretary of Labor filed a whistleblower lawsuit against the Lube Center and Oskoui in federal court in Idaho on behalf of Kramer. 

Default Judgment Award of Lost Wages and Punitive Damages 

Despite admitting to six violations of mandatory OSHA safety standards and paying a civil penalty as a result of those violations, Oskoui attempted to get the lawsuit dismissed. At times, he tried to represent his company, the Lube Center, himself. Court rules, however, require that a corporation be represented by an attorney. 

After more than a year of legal wrangling, Chief Judge B. Lynn Winmill entered a default judgment against both the Lube Center and Oskoui. His order requires that the Lube Center and Oskoui pay Kramer $979.25 in lost wages, plus pre- and post-judgment interest. More significantly, the defendants are ordered to pay Kramer $100,000 as punitive damages for the OSHA violations. The judgment also must be posted on employee bulletin boards at the Lube Center for 90 days. Both the Lube Center and Oskoui personally are on the hook for these amounts as the Judge held them jointly and severally liable. 

Handling Whistleblowers and Avoiding Retaliation 

Oskoui is appealing the default judgment but regardless of the result of his appeal, a great deal of time and expense could have been avoided had he handled Kramer’s safety concerns differently. Lessons from this case are clear. First, treat an employee’s safety concerns seriously. If Oskoui had investigated Kramer’s concerns when they were raised internally before Kramer went to OSHA, Oskoui may have discovered that conditions did indeed violate mandatory OSHA safety standards and he could have taken steps to rectify them before OSHA became involved. Second, if an employee files a complaint with OSHA, do not discharge them in retaliation for that complaint. Whistleblowers have protections and you add new violations and face additional liability for retaliating against the employee who raised the safety issues. Finally, do not skimp when it comes to safety. Your money is better spent fixing the unsafe conditions than paying a whistleblower $100,000 in punitive damages. 

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August 20, 2015

OSHA Looks to ADR to Reduce Explosion in Whistleblower Complaints

Linton_MBy Matthew Linton 

The Occupational Safety and Health Administration (OSHA) has issued revised policies and procedures for applying a new process for resolving whistleblower disputes. The new process is an early resolution process that is to be used as part of a regional Alternative Dispute Resolution (ADR) program. 

OSHA maintains in its press release that the ADR program offers whistleblower parties the opportunity to negotiate a settlement with the assistance of a neutral, confidential OSHA representative who has subject-matter expertise in whistleblower investigations. 

"OSHA receives several thousand whistleblower complaints for investigation each year," said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. "The Alternative Dispute Resolution process can be a valuable alternative to the expensive and time consuming process of an investigation and litigation. It will provide whistleblower complainants and respondents the option of exploring voluntary resolution of their disputes outside of the traditional investigative process." 

We applaud OSHA’s attempt to reduce litigation costs through ADR. However, ADR is often unhelpful at the early stages of whistleblower complaints because the complainant is typically pro se (without legal counsel) with unrealistic expectations. Often it takes time for the facts of a case to become clear, and premature ADR could be counterproductive and result in the parties becoming more entrenched in their respective positions. We hope OSHA will consider these concerns as it rolls out this program. 

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April 27, 2015

Combating Workplace Violence in Healthcare and Social Services Facilities

Linton_MBy Matt Linton 

Between 2011 and 2013, 70 to 74% of all reported workplace assaults occurred in healthcare and social service settings, according to statistics cited by the Occupational Safety and Health Administration (OSHA). In addition, workplace assaults account for over ten percent of the injuries that result in healthcare workers missing days from work. Healthcare workers thus face a significant risk of injury at work from the violence of others and their employers are exposed to stiff penalties from OSHA if any regulations were violated in relation to the injury. 

The increased risks of violence faced by healthcare workers prompted OSHA to update its guidelines for violence prevention programs in the healthcare industry. In its Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers, OSHA sets forth employer best practices and ways in which healthcare organizations may incorporate violence prevention into their overall safety and health programs. 

Violence Prevention Programs 

OSHA advocates that healthcare organizations should adopt written workplace violence prevention programs. Such programs should offer an effective approach to reduce or eliminate the risk of violence faced by workers based on the type, size and complexity of each facility’s operation. Although each program should be individualized, focusing on processes and procedures that are suitable for the workplace in question, the basic components of an effective workplace violence prevention program should include: 

  • Commitment by management
  • Participation by employees
  • An analysis of the worksite
  • Hazard prevention and control
  • Safety and health training
  • Accurate recordkeeping, and
  • Ongoing evaluation of the program 

The new guidelines offer specific steps that healthcare employers may take to adopt, implement and evaluate their violence prevention programs. It includes charts offering possible engineering controls, such as alarm systems, exit routes, metal detectors, lighting enhancements and barrier protections. Possible suggested work practice and administrative controls include tracking patients with a known history of violence, entry procedures, employee uniform issues, incident response and high risk activity procedures and transportation concerns. In short, the guidelines provide practical, real-life suggestions for addressing workplace violence for different types of healthcare facilities. 

Workplace Violence Program Checklists 

OSHA also provides a number of comprehensive checklists to allow organizations to evaluate their workplace and determine appropriate security measures to help lessen the risk of violence in their facilities. Adaptable to all sorts of healthcare settings, the checklists will assist safety and health officers and committees to be proactive in preventing workplace violence and to conduct periodic audits of the effectiveness of their security measures. 

Update and Review Your Violence Prevention Program 

If your organization has not yet adopted a written violence prevention program, now is the time to get started. Utilize the resources provided by OSHA as a starting point to create a program that is tailored to your facility and protects your workers from harm.  Engage counsel, if necessary, to help assist you with this process. 

If your facility already has a program in place, take a look at the updated guidelines to see if additional security measures, training or prevention procedures are warranted. Your workplace violence prevention program should not sit on a shelf but instead should be reviewed and updated regularly. Doing so will help keep assaults and threatening behavior away from your employees.

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