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OSHA can do more to deter violence against health care workers, GAO says

April 15th, 2016  |  Pamela Wolf

A new GAO report addresses OSHA’s efforts to stem workplace violence in the health care industry and makes a triad of recommendations to help the agency operate more effectively. However, there remains a legitimate question as to whether OSHA, even if it implements the GAO’s recommendations, has the tools it needs to effectively deter employers that are not required by law to implement workplace violence prevention programs.

Violence against health care workers. Workers in health care facilities experience substantially higher estimated rates of nonfatal injury caused by workplace violence compared to workers overall, according to federal data reviewed by the GAO. The full extent of the problem, however, and its associated costs are unknown, the GAO report notes. In 2013 (the most recent year that data were available), private-sector health care workers in inpatient facilities experienced workplace-violence-related injuries that required time off from work at an estimated rate of at least five times higher than the rate for private-sector workers overall, according to Department of Labor data. The number of nonfatal workplace violence cases in health care facilities ranged from about 22,250 to 80,710 cases for 2011 (the most recent year that data were available from all three federal datasets that the GAO reviewed).

According to the GAO’s report, WORKPLACE SAFETY AND HEALTH: Additional Efforts Needed to Help Protect Health Care Workers from Workplace Violence, the most common types of reported assaults were hitting, kicking, and beating. But health care workers may not always report such incidents, and there is limited research on the issue, so the full scope of the problem is unknown. And, the report does not address worker fatalities due to workplace violence.

OSHA efforts. OSHA provides resources to employers in health care settings, including a dedicated webpage for preventing workplace violence in health care. The agency also provides a link to the National Institute for Occupational Safety and Health’s workplace violence prevention training course for nurses, among other resources. But as the GAO’s report pointed out, OSHA does not require employers to implement workplace violence prevention programs. It provides only voluntary guidelines and may cite employers for failing to provide a workplace free from recognized serious hazards under the general duty clause.

Fatalities from violence. Although not addressed in the GAO’s report, workplace violence sometimes results in worker fatalities. An Occupational Safety and Health Review Commission administrative law judge last July affirmed that Integra Health Management failed to protect a 24 year-old Florida health care worker from workplace violence when she was murdered in 2012. The social service coordinator’s client, who had severe mental illness and a violent criminal history, fatally stabbed her outside his home in December 2012. The heath care worker had been on the job for about three months. She previously had met with the client and recorded in her case notes that she was uncomfortable being alone with him.

OSHA investigators found Integra Health Management knew the assailant had exhibited several high-risk behaviors, including a history of violence, criminal behavior, schizophrenia, and paranoia. But the company nonetheless took no steps to protect its employee. The agency also discovered multiple incidents where Integra employees were victims of aggression and verbal and physical threats from clients. The health and safety agency concluded that the company did not conduct a hazard assessment of the service coordinator position or develop a written program to prevent workplace violence hazards.

Are penalties effective? The penalties imposed by the citations issued in the Florida health care worker’s fatality seem to beg the question whether the tools available to OSHA provide an effective deterrent to employers that do little or nothing to prevent workplace violence. Investigators in that case issued two serious citations with full penalties to Integra in March 2013 for failing to protect employees from violence in the workplace and not reporting the social service coordinator’s death to OSHA. The company contested the citations that went before the commission for review. The ALJ found that Integra’s approach to safety was inadequate and the company should have taken precautions to prevent injury by hiring and training its employees appropriately. The citations, however, imposed penalties of just $10,500.

Earlier this year, in March, Labor Secretary Thomas Perez was asked at a House hearing to address the adequacy of criminal penalties in the worker-safety context. In response, he cited an OSHA case in which a worker was literally dissolved to death at work and the substance then discharged into water. While the OSHA fine was only $50,000, the EPA fine for killing fish was in the millions of dollars—fish had more protection than people.

Inflation-based increases. Notably, under the Bipartisan Budget Act of 2015 (BBA), signed into law by President Obama on November 2, 2015, the heads of all federal agencies will be required to annually adjust their civil penalties based on the Consumer Price Index. The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, incorporated into the BBA at Section 701, also contains a catch-up provision, which could adjust penalties by up to 150 percent by mid-2016. There is a procedure for lesser adjustments where an increase would have negative impact or the social costs of the increase would outweigh the benefits.

Assistant Secretary of Labor for OSHA, Dr. David Michaels, had advocated for stiffer penalties for some time. He had told a congressional committee: “Simply put, OSHA penalties must be increased to provide a real disincentive for employers accepting injuries and worker deaths as a cost of doing business.” It remains to be seen, however, whether increased penalties alone will have an appreciable impact on the problem of workplace violence in the health care industry absent any requirement that employers must implement prevention measures.

Areas for improvement. Turning back to GAO, its report gave a nod to OSHA’s increased education and enforcement efforts to help employers address workplace violence in health care facilities. However, it also identified three areas for improvement in accordance with federal internal control standards.

More information on general duty clause citations. First, the GAO suggests that OSHA should give inspectors additional information on developing citations. Although the agency has not issued a standard requiring employers to implement workplace violence prevention programs, it has issued voluntary guidelines and may cite employers for hazards identified during inspections—including violence in health care facilities—under the general duty clause of the OSHA Act. The report notes that OSHA increased its yearly workplace violence inspections of health care employers from 11 in 2010 to 86 in 2014. The agency issued general duty clause citations in about 5 percent of workplace violence inspections of health care employers. Regional staff, however, said that developing support to address the criteria for these citations is challenging. Moreover, staff from five of OSHA’s 10 regions said additional information, such as specific examples of issues that have been cited, is needed.

Follow up when hazard alert letters are issued. Second, the GAO noted that when the criteria for a citation are not met, inspectors may issue warnings, known as hazard alert letters. But employers are not required to take any corrective action in response to these warnings, and OSHA does not require inspectors to follow up to see if employers have taken corrective actions. Therefore, OSHA has no idea whether identified hazards have been addressed and the same hazards may persist.

Assess results of agency actions. Finally, the GAO suggested that OSHA should assess the results of its efforts to determine whether additional action, such as development of a standard, is necessary. The agency has not fully assessed the results of its efforts to address workplace violence in health care facilities, according to the report. Absent such an assessment, OSHA will not be in a position to know whether its efforts are effective or if additional action may be needed to address this hazard.

Recommendations. Specifically, the GAO’s report recommends that OSHA:

  • provide additional information to assist inspectors in developing citations;
  • develop a policy for following up on hazard alert letters concerning workplace violence hazards in health care facilities; and
  • assess its current efforts.

OSHA agreed with these recommendations and said that it would take action to address them.

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