Seyfarth Synopsis: In recent decisions—including Secretary of Labor v. Integra Health Management, Inc., No. 13-1124 (OSHRC Mar. 4, 2019)—the Occupational Safety and Health Review Commission (OSHRC) has upheld violations of the General Duty Clause where employers failed to adequately address workplace violence hazards.
With increased attention to high profile active shooter incidents, workplace violence is an increasingly pressing issue for employers across industries. Workplace violence can come in many forms and can be caused by employees, clients or customers, and even members of the public with no connection to the workplace. Federal and state regulators have taken action to address workplace violence. We have recently blogged on CalOSHA's new Workplace Violence in Healthcare Standard.
We have also analyzed increasingly aggressive enforcement by federal OSHA against employers who suffer workplace violence incidents, particularly under the General Duty clause. In 2015, we blogged about Secretary of Labor v. Integra Health Management, Inc., No. 13-1124 (OSHRC June 22, 2015) (ALJ) , in which Administrative Law Judge Dennis Phillips upheld OSHA's General Duty Clause citation for a workplace violence hazard. The employer provided in-home health care and social services to patients in Florida. A female social services coordinator made progress notes documenting that one of her male clients made her uncomfortable and anxious. According to OSHA, the employer did not take action in response to these concerns.
On her final visit to the client's home, the client tragically chased the coordinator off his porch with a knife and stabbed her to death. OSHA alleged that the Company committed a Serious violation of the General Duty Clause for its failure to "furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees, in that employees were exposed to the hazard of being physically assaulted by clients with a history of violent behavior."
After a trial, Judge Phillips affirmed the citation, concluding that the employer's workplace violence policy was inadequate, that the employee training was insufficient, and that the employer failed to provide the employee with information about the medical background of the client, as well as the client's criminal history. The employer, according to Judge Phillips, also failed to monitor the employee's progress notes which identified specific concerns about the client and failed to take affirmative action to assist her when she indicated her continuing anxiety about their interactions.
Integra appealed the decision to the Review Commission, arguing that the hazard at issue—"being physically assaulted by clients with a history of violent behavior"—was not a hazard recognized by the employer or the industry and therefore could not substantiate a General Duty citation.
Earlier this month, Judge Phillips' decision was affirmed by OSHRC, but not without some disagreements between the Commission members on various aspects of the case. Secretary of Labor v. Integra Health Management, Inc., No. 13-1124 (OSHRC Mar. 4, 2019 ).
In his concurrence, for example, Commissioner Sullivan opined that the "reasonable foreseeability" of a hazard must be an element of the general duty analysis, and in the case of Integra, "the Secretary established that the hazard cited here was reasonably foreseeable to a 'reasonable employer' presented with the specific facts and circumstances in this case." And Commission Chairman MacDougall, while agreeing on the cognizable hazard issue, warned, "[T]he Secretary's proclivity to overreach in his application of the general duty clause not only runs afoul of the prohibitions against holding employers liable for ill-defined hazards that cannot be controlled, it also stands in stark contrast to the unmistakable Congressional preference in the overall structure of the Act for specific standards."
Nonetheless, this case illustrates the increasingly close eye OSHA is placing on workplace violence and the challenges facing employees in healthcare and other industries. However, the general nature of the duty and the methods to abate workplace violence hazards are still evolving, and if Integra's appeal from Judge Phillips' decision and the concurring opinions of Commissioners MacDougall and Sullivan are any indicia, there are still legal battles to be fought over the reach and scope of the General Duty Clause in the healthcare and social services industries. Integra still has time to appeal OSHRC's decision to the U.S. Court of Appeals.
Under Integra, employers have been assigned a duty to take action when confronted with concerns about workplace violence from their employees. Employers should develop written workplace violence prevention plans, and work with outside counsel to proactively address any abnormal behavior, threats, or violent incidents that occur in the workplace.
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