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OSHA Cites Health Care Employer for Willfully Exposing Workers to Violence

on Monday, 14 November 2016 in Health Law Advisory: Zachary J. Buxton, Editor

As discussed in a June 2015 Baird Holm Health Law Advisory, the Occupational Safety and Health Administration announced that it would expand the use of its enforcement resources against health care employers, focusing on (among other things) workplace violence, musculoskeletal disorders related to patient handling, bloodborne pathogens, tuberculosis, and slips, trips and falls.

Well, OSHA has been true to its word. On June 24, 2016, the agency issued citations and penalties totalling $98,000 against AndVenture, Inc. (d/b/a Epic Health Services), one of the nation’s leading providers of pediatric home health and therapy services for medically frail and chronically ill children. The citations alleged that AndVenture willfully exposed home health care workers to the hazard of workplace violence in that they were sent into hostile home environments that resulted in verbal and serious physical assaults and verbal intimidation and threats of serious physical assaults.

OSHA’s investigation stemmed from the complaint of an employee who was allegedly sexually assaulted by a home care client after the company had been warned by another employee of sexual assaults. Supposedly, AndVenture had received numerous reports of verbal, physical and sexual assaults on employees, as well as a report of an employee forced to work in a house in which domestic violence occurred. OSHA also claimed that AndVenture had no system for reporting threats or incidents of violence. AndVenture has contested the citations.

The citations include a number of suggested and feasible means of abatement that the company can implement to address workplace violence issues, including development of:

  •  A written, comprehensive workplace violence prevention program;
  •  Workplace violence hazard assessment and security procedures for each new client;
  •  Procedures to control workplace violence such as a worker’s right to refuse to provide services in a clearly hazardous situation without fear of retaliation;
  •  A workplace violence training program;
  •  Procedures to be taken in the event of a violent incident in the workplace, including incident reports and investigations; and
  •  A system for employees to report all instances of workplace violence, regardless of severity.

In light of these citations and OSHA’s previous announcement that it is targeting the health care industry, hospitals, nursing homes, and other health care employers falling under OSHA’s jurisdiction should review the five hazards addressed by the Nursing Home National Emphasis Program (“NHNEP”): workplace violence; musculoskeletal disorders from lifting patients or residents; exposures to tuberculosis; bloodborne pathogens; and slips, trips and falls. They should also review the Violence Guidelines, Respiratory Toolkit, and all applicable OSHA regulations to ensure they are in full compliance. The Healthcare Section [https://www.osha.gov/SLTC/healthcarefacilities/index.html] of OSHA’s website is helpful in this regard. The use of self-audits and audits from safety consultants with health care industry experience is also a good idea. Such audits should be arranged through legal counsel so they may be shielded from disclosure to OSHA pursuant to the attorney-client privilege in the event the audits reveal deficiencies that may not be immediately remedied.

R.J. (Randy) Stevenson

1700 Farnam Street | Suite 1500 | Omaha, NE 68102 | 402.344.0500