Regulatory and Legal Issues to Consider

There are a number of regulatory and legal issues to consider in regard to workplace violence. ECRI (2017) noted:

Federal Law – The general-duty clause of the Occupational Safety and Health Act (OSH Act) broadly addresses a multitude of workplace safety issues by requiring employers to furnish employees with employment and with a place of employment free from recognized hazards that cause or are likely to cause death or serious physical harm (29 USC § 654[a][1-2]).16

In 2014, California Bill 1299 required the state’s Occupational Safety and Health Standards Board to adopt, no later than July 1, 2016, “standards developed by the Division of Occupational Safety and Health that require specified types of hospitals, including a general acute care hospital or an acute psychiatric hospital, to adopt a workplace violence prevention plan as a part of the hospital’s injury and illness prevention plan to protect health care workers and other facility personnel from aggressive and violent behavior.” It further mandated the following:

  • A requirement that the workplace violence prevention plan be in effect at all times in all patient care units, including inpatient and outpatient settings and clinics on the hospital’s license
  • (2) A definition of workplace violence that includes, but is not limited to, both of the following:
    • (A) The use of physical force against a hospital employee by a patient or a person accompanying a patient that results in, or has a high likelihood of resulting in, injury, psychological trauma, or stress, regardless of whether the employee sustains an injury
    • (B) An incident involving the use of a firearm or other dangerous weapon, regardless of whether the employee sustains an injury
  • (3) A requirement that a workplace violence prevention plan include, but not be limited to, all of the following:
    • (A) Personnel education and training policies that require all healthcare workers who provide direct care to patients to, at least annually, receive education and
      training that is designed to provide an opportunity for interactive questions and answers with a person knowledgeable about the workplace violence prevention plan. The education and training shall cover topics that include, but are not limited to, how to recognize potential for violence, and when and how to seek assistance to prevent or respond to violence.17

In April 2017, California OSHA released regulations requiring employers of healthcare workers to address:

Procedures to identify and evaluate patient-specific risk factors and assess visitors or other persons who are not employees. Assessment tools, decision trees, algorithms, or other effective means shall be used to identify situations in which patient-specific Type 2 violence [workplace violence directed at employees by customers, clients, patients, students, inmates, or visitors or other individuals accompanying a patient] is more likely to occur and to assess visitors or other persons who display disruptive behavior or otherwise demonstrate a risk of committing workplace violence. Patient- specific factors shall include, as applicable, but not necessarily be limited to, the following:

  • (A) A patient’s mental status and conditions that may cause the patient to be non-responsive to instruction or to behave unpredictably, disruptively, uncooperatively, or aggressively
  • (B) A patient’s treatment and medication status, type, and dosage, as is known to the health facility and employees
  • (C) A patient’s history of violence, as is known to the health facility and employees
  • (D) Any disruptive or threatening behavior displayed by a patient

This requirement set forth a standard for employers to ensure they provide for a safer environment and interactions with patients who present common signs of a recognizable threatening behavior.18

At the federal level, OSHA has been discussing the idea of a specific standard to protect healthcare workers from workplace violence. In 2016, OSHA published a request for information in the Federal Register “seeking public comments on the extent and nature of workplace violence in the healthcare industry as well as the nature and effectiveness of interventions and controls for violence prevention.”21 The American Hospital Association (AHA) has shown a commitment to helping healthcare facilities with violence prevention and reduction and stated that OSHA should “focus its efforts on sharing best practices that have a demonstrated effectiveness in workplace violation prevention with the health care and social assistance sectors.”22

Although it does not yet have regulations specifically related to workplace violence, OSHA has addressed the issue through its general duty clause. As ECRI explained:

The courts have interpreted OSHA’s general duty clause to mean that an employer has a legal obligation to provide a workplace free of conditions or activities that either the employer or industry recognizes as hazardous and that cause, or are likely to cause, death or serious physical harm to employees when there is a feasible method to abate the hazard. An employer that has experienced acts of workplace violence, or becomes aware of threats, intimidation, or other indicators showing that the potential for violence in the workplace exists, would be on notice of the risk of workplace violence and should implement a workplace violence prevention program combined with engineering controls, administrative controls, and training.23

In a recent article on workplace violence in hospitals, Warren (2017) highlighted pertinent Joint Commission information: “The Joint Commission has begun to interpret several existing standards to better relate them to workplace violence issues, such as several Environment of Care Standards (EC 02.01.01 – The hospital identifies safety and security risks associated with the environment of care; EC 02.01.01 – The hospital has written procedures to follow in the event of a security incident; EC 03.01.01 – Staff and licensed independent practitioners can describe or demonstrate actions to take in the event of an environment of care incident), Human Resources Standards as related to training (HR 01.05.03 – Staff participate in education and training that is specific to the needs of the patient population served by the hospital. Staff participation is documented; HR 01.06.01 – The hospital defines the competencies it requires of its staff who provide patient care, treatment, or services) and even Leadership Standards.” Additionally, LD 03.01.01 EP 5 requires that leaders create and implement a process for managing behaviors that undermine a culture of safety.24