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Workplace Violence Citation Upheld – Decision Highlights Steps To Prevent Violence At Work

By David Dubberly

In December 2012, a “service coordinator” (similar to a home health worker) employed by Integra Health Management Inc. was fatally stabbed during a home visit to one of the company’s clients.

The client had a history of mental illness and violent criminal behavior, including convictions for aggravated battery with a deadly weapon and aggravated assault with a weapon.  Integra was unaware of this because, at the time, it did not conduct background checks on clients.  The murdered worker had submitted multiple reports to her supervisors in which she described disturbing behavior by the client and stated that she was uncomfortable being alone with him in his house.

Employer Cited

Following the tragedy, the U.S. Occupational Safety and Health Administration (OSHA) cited Integra for a “serious” violation of the “general duty clause” of the Occupational Safety and Health Act (OSH Act).  According to OSHA, Integra violated the clause because its “employees were exposed to the hazard of being physically assaulted by [clients] with a history of violent behavior.”

The General Duty Clause

Under the OSH Act, OSHA issues detailed regulations for workplace safety and investigates and cites employers for failure to comply with those rules.  If OSHA identifies a workplace hazard that is not covered by a specific regulation, it may issue a citation under the general duty clause, which requires employers to keep workplaces “free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.”

Employer’s Appeal

Even though there is no specific OSHA regulation on workplace violence prevention, Integra was unsuccessful in contesting the agency’s citation, which was affirmed by an Administrative Law Judge of the Occupational Safety and Health Review Commission.  Integra then appealed to the Commission, arguing that:

  • The “hazards encompassed by the general duty clause [do not] include the risk of criminal assaults upon employees by third parties”;
  • Neither Integra nor the social service or healthcare industries “recognized” the risk of a community health worker being assaulted by a client during an in-home visit as a hazard; and
  • There were no feasible abatement measures that would have materially reduced the hazard.

OSHRC’s Decision

The Commission rejected Integra’s arguments, finding that:

  • Workplace violence is a hazard covered by the general duty clause when “there is a direct nexus between the work being performed” and the “risk of workplace violence” like there was in this case;
  • Integra recognized the hazard of physical assault against its workers by clients because it provided some safety training and because the murdered worker raised safety concerns in reports to her supervisors; and
  • OSHA proposed abatement measures were feasible.

Measures to Reduce Risk of Workplace Violence

The abatement measures proposed by OSHA included:

  • Creating a written workplace violence prevention program;
  • Determining the behavioral history of clients, for example, using criminal background checks;
  • Putting procedures in place to communicate any incidence of workplace violence to all employees who could potentially be exposed;
  • Training employees on how to respond to a workplace violence incident;
  • Providing employees with a reliable way to summon assistance when needed; and
  • Establishing liaisons with local law enforcement agencies.

After the Commission’s findings in the Integra case, employers are on notice of their responsibility to take steps to prevent workplace violence under the general duty clause.  Employers should consider adopting measures similar to those described above to reduce or eliminate the risk of workplace violence.

 

David Dubberly is certified by the South Carolina Supreme Court as a Specialist in Employment and Labor Law.  He can be reached at ddubberly@nexsenpruet.com.