Regulation of Workplace Violence Under OSHA's "General Duty" Clause

Workplace violence, defined by the Occupational Safety and Health Administration ("OSHA") as "any act or threat of physical violence, harassment, intimidation or other threatening behavior that occurs at the worksite" has become front and center in the minds of many employers.  It is an increasingly important topic of discussion, with important legal ramifications.  According to the Bureau of Labor Statistics, almost 17,000 workers in private industry were injured due to workplace violence in 2016 and 70% of those injured worked in the healthcare and social assistance industry.  The National Safety Council reports that 17% of workplace deaths in 2016 were the result of violence.  Violence in the workplace obviously impacts the injured or killed employees and their families, but it also affects the bottom line, including medical bills, workers comp claims, reduced productivity and morale, as well as negative publicity.

An Employer’s Obligations

As it relates to workplace violence, OSHA does not contain any specific regulations to address this growing and widespread problem.  The obligation of an employer to its employees to prevent or lessen workplace violence has been the subject of proposed legislation; however, OSHA has not been amended to address this issue.  In 2017, the DOL indicated that it would begin the process of creating rules relating to workplace violence prevention, but as of this date, it has failed to implement such steps.  Congress has failed to pass proposed legislation that would require the DOL to create specific standards under OSHA.

OSHA provides the Department of Labor ("DOL") the authority to issue regulations for workplace safety, and to conduct workplace audits and accident investigations.  The DOL has the authority to issue citations and fines to employers for failing to comply.

In addition to specific regulations, Section 5(a) (1) of OSHA, commonly referred to as the "General Duty Clause," states that "[e]ach employer … shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."

Because of the lack of specific rules under OSHA, the significance of a recent decision by the Occupational Safety and Health Review Commission ("OSHRC") cannot be overstated. In March, the OSHRC issued a decision on the Secretary of Labor's power to issue citations under the General Duty Clause relating to the prevention of workplace violence.  See Secretary of Labor v. Integra Health Management, Inc. ("Integra"), OSHRC Docket Number 13-1124 (March 4, 2019).

The Integra Case

Integra contracts with health insurers to provide in-home assessment of clients, many of whom have mental health issues and/or criminal backgrounds.  In 2012, a schizophrenic male client stabbed a female Integra employee to death during a home visit.  The client had a prior criminal record that included multiple convictions, but Integra was unaware of such background because at the time, it did not conduct criminal background checks on the clients.

As a result of multiple home visits, the female employee, who was a recent college graduate, had previously documented on more than one occasion that one of her male clients made her feel uncomfortable and that he exhibited delusional behavior.  But Integra failed to take any action according to OSHA, and continued to send the employee to the client's home without a co-worker present.

Following the investigation of the killing, OSHA issued a citation to Integra for two "Serious Violations," under the general duty clause, "because its employees were exposed to the hazard of being physically assaulted by members with a history of violent behavior."  After a trial, the citation was affirmed by the OSHRC Administrative Law Judge, with the Judge finding that Integra's workplace violence policy was inadequate, its training was insufficient, and it failed to take action when the employee indicated her concerns about the client's behavior.  Integra then appealed to the 3-member panel of OSHRC Commissioners.

The Commission addressed whether Integra violated the General Duty Clause by failing to adequately address "a workplace violence hazard, specifically, the risk of Integra's employees being physically assaulted by a client with a history of violent behavior."  By the time the hearing was held, Integra had implemented new procedures to help prevent such hazards, including performing background checks and instituting a written workplace violence prevention program.

Proving a Violation

As set forth in the Commission's written decision, "to prove a violation of the general duty clause, the Secretary must establish that: (1) a condition or activity in the workplace presented a hazard; (2) the employer or its industry recognized the hazard; (3) the hazard was causing or likely to cause death or serious physical harm; and (4) feasible and effective means existed to materially reduce the hazard."  The Commission noted that if a hazard cannot be eliminated, it is sufficient for the employer to reduce the hazard "to the extent feasible."  The Commission noted that the term "free of hazards" is an aspirational goal, and they are charged only with taking "reasonable steps to protect employees."  The Commission cited with approval a prior D.C. Circuit case which held that the record must "indicate that demonstrably feasible measures would have materially reduced the likelihood" that hazardous conduct would have occurred.

Integra argued that the risk of criminal assaults upon employees by third parties was not encompassed by the general duty clause.  It argued that "the violent conduct of a third party is an inherently unpredictable act of a different nature than the hazards typically regulated under the general duty clause."  The Commission rejected these arguments, finding that allegations of workplace violence is a cognizable "hazard" under the Act.  The Commission noted that Integra employees were required to meet face to face with members, in their homes or occasionally in homeless shelters, many of whom had been diagnosed with mental illness and/or who had a criminal record, as well as a history of violence. Under those circumstances, the Commission found it "foreseeable" that a violent event could occur.

Addressing Workplace Violence

As to the feasibility of addressing workplace violence, the Secretary offered the following as "feasible means:"

• Creating a stand-alone written workplace violence prevention program
• The program should include a policy that workplace violence will not be tolerated and that every instance will be investigated
• Determining the behavioral history of new members, and those with assaultive behavior problems
• Putting procedures in place to communicate incidents of workplace violence to all staff who could potentially be exposed
• Training all employees on effective methods of responding during a workplace violence incident
• Implementing and maintaining a buddy system
• Providing all staff with a reliable way to summon assistance when needed
• Establishing a liaison with law enforcement representatives.

Going Forward

Because of the unique facts presented in Integra, the ruling is this case is somewhat understandable.  The question for employers going forward, however, is how to interpret their "duty" to prevent workplace violence, in the absence of more clear guidance.  It is fair to say that Integra was based on a narrow set of facts that lends itself to this type of finding.  Most employers do not have the same type of workplace environment, i.e., employees visiting the homes of mentally ill persons.

Nonetheless, all employers in healthcare and social work industries, and well as any other employers who require their employees to enter the homes of customers who may have mental or criminal backgrounds, would be well served to consider the recommended suggestions offered by the Secretary for lessening the risk of workplace violence.

It is fair to say that OSHA has workplace violence in its sights.  Workplace violence is now viewed as falling with the "general duty" of employers to provide a safe workplace.  It is likely that OSHA will begin to cite employers more often where it is foreseeable that employees are subjected to potential violence in the course of performing their duties.  In such event, experienced OSHA attorneys will be necessary to aggressively fight such citations.