February 01, 2019

Combating Healthcare Workplace Violence: A Dose of Prevention is Good Medicine

Chantell C. Foley, Fisher Phillips, Louisville, KY

Headlines reporting incidents of workplace violence have become all too common in American society. According to the Occupational Safety and Health Administration (OSHA), each year nearly two million U.S. workers report having been victims of workplace violence.1 Significantly, research indicates that nearly 75 percent of all workplace assaults happen in the healthcare industry.2 In fact, healthcare accounts for nearly as many serious violent injuries as all other industries combined.3 Many of these victims work in hospitals, nursing homes and other healthcare settings.

In the most recent data available (2002-2013), the rate of serious workplace violence incidents requiring days off for an injured worker to recuperate was, on average, more than four times greater in healthcare than in private industry.4 Between 2011 and 2016, at least 58 hospital workers died as a result of workplace violence, according to the Bureau of Labor Statistics’ Census of Fatal Occupational Injuries, released in 2018.5 In 2016, the Government Accountability Office released its most recent findings that healthcare workers at inpatient facilities (such as nursing homes or surgery centers) were five to 12 times more likely than all other workers to experience nonfatal workplace violence.6

So, what is workplace violence? What causes healthcare workplace violence? Are violent actions more likely to occur in certain healthcare settings? Does the law require healthcare facility employers to take certain actions to prevent violent acts at work? This article answers these questions and will help healthcare attorneys better advise clients on how to take appropriate action to mitigate these risks.

Workplace Violence – What Is It?

Workplace violence is a broad concept. The definition can range from vague threats and verbal abuse to physical assaults and even homicide. According to the National Institute for Occupational Safety and Health, workplace violence can be “violent acts, including physical assaults and threats of assault, directed toward persons at work or on duty.”7

While active shooter events tend to be the most extreme and sensationalized examples of workplace violence,8 violent acts do not have to involve active shooters or even a physical injury. In fact, the more common examples of workplace violence include verbal threats by patients, a distraught family member who may be abusive, a domestic dispute that spills over into the workplace or co-worker bullying.9 Threats, abuse, hostility, harassment and other forms of verbal violence can cause significant psychological trauma and stress – and potentially escalate to physical violence.

Besides the obvious physical and emotional harm healthcare workplace violence causes, the costs associated with even one violent incident are extremely high. These costs may include medical care and counseling, liability, legal fees and workers’ compensation losses, in addition to the added costs of overtime, recruitment and temporary staffing, lost business and production. Most importantly, it harms workers and makes their jobs more difficult.   As such, it is important for healthcare lawyers to understand the causes of workplace violence in the industry to help clients address and curb these incidents.

Why Is Workplace Violence More Prevalent in Healthcare Settings?

“I’ve been bitten, kicked, punched, pushed, pinched, shoved, scratched and spat upon,” said Lisa Tenney, RN, of the Maryland Emergency Nurses Association. “I have been bullied and called very ugly names. I’ve had my life, the life of my unborn child and of my other family members threatened, requiring a security escort to my car.”10

Unfortunately, such stories are becoming more and more common in the healthcare industry. Why is this? One reason is that there are several unique factors associated with the healthcare industry that increase workplace violence. These factors include the close proximity between the patient and employee (especially home healthcare employees working alone); employees working in neighborhoods with high crime rates; employees working with patients who have a history of violence or may be under the influence of drugs; and patients who are mentally impaired. Not surprisingly, patients often perpetrate the violence in the healthcare setting. Their victims can include other patients, workers and visitors. Patients whose thinking is clouded by drugs, dementia or mental illness are capable of violent acts, including verbal abuse, bullying and physical aggression, even if not intentional or deliberate.

For instance, in 2011 a National Institute of Mental Health administrator and expert in the diagnosis and treatment of schizophrenia was beaten to death in his office by a patient. Five years later, this patient was charged with murdering his roommate at a state hospital for the mentally ill.11 A psychiatrist in Virginia also was killed in his home office by a patient.12 Sadly, these patients may believe they are protecting themselves from healthcare workers and that they are acting in self-defense. In other cases, incidents of violence were caused by visitors, coworkers or other people. For example, in 2010 a physician at Johns Hopkins Hospital was shot by a man who was distraught about his mother’s care. The man then killed his mother and himself.13

Regardless of who initiates the workplace violence, research indicates that healthcare workers tend to tolerate workplace violence as “part of the job,” which can perpetuate the problem.14  Acceptance of and underreporting of workplace violence is an unfortunate factor that may contribute to the increase in workplace violence. The actual number of incidents of workplace violence involving healthcare workers, especially those in emergency departments and services, is likely much higher because these workers tend not to report it as often as workers in other industries do.15 Nursing homes and residential care facilities have the highest rate of assaults within healthcare, accounting for 19 percent of all violent acts in the industry. Studies show that only about 70 percent of assaults are being reported.16

Laws intended to protect patients from abuse may contribute to healthcare workers’ belief that they must tolerate patients abusing them. Some healthcare workers feel that reporting it is a waste of time because nothing will be done about it. Other healthcare employees tend not to report incidents of violence because it can be inconvenient, especially if the worker is not injured. Likewise, lack of employer reporting protocols and mechanisms might contribute to the frequency of underreporting. Healthcare workers also tend to fear retaliation for reporting workplace violence, especially bullying and verbal abuse, at a higher rate than employees in other industries.

Workplace bullying is often given short shrift as it relates to workplace violence. According to the Joint Commission, Division of Health Care Improvement, in the healthcare setting 44 percent of nursing staff members have been bullied. In fact, nurses tend to accept nurse-on-nurse bullying as part of the job, particularly the new or novice nurse, thus coining the phrase “nurses eat their young.”17 In another study, 38 percent of nurses reported verbal harassment or bullying by physicians.18

The impact of healthcare workplace violence, including bullying behavior, on a company are lower employee morale and increased absenteeism and, in some cases, can lead to lawsuits. These factors, and others, can make it more difficult for healthcare industry employers and their counsel to effectively prevent and respond to workplace violence.

Federal and State Healthcare Workplace Violence Laws

No OSHA standards govern workplace violence. That means there are no OSHA regulations requiring an employer to have a workplace violence policy, prohibit weapons in the workplace or have a plan for dealing with a workplace shooter. OSHA has, however, issued guidance asserting that the prevalence of workplace violence makes it a “recognized hazard” in the healthcare industry and has broadly defined it as “any act or threat of physical violence, harassment, intimidation, or other threatening behavior that occurs at the work site.“19 Under the General Duty Clause, Section 5(a)(1) of the OSH Act, employers are required to provide their employees with a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious harm.” Administrative 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. This includes the prevention and control of the hazard of workplace violence.

OSHA has cautioned:

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.20

In Secretary of Labor v. Integra Health Management, Inc., OSHRC Docket No. 13-1124 (June 22, 2015), OSHA cited the healthcare facility under the General Duty Clause after a mentally ill client fatally stabbed an Integra service coordinator in December 2012. OSHA argued during the administrative hearing that Integra should have foreseen and prevented the employee’s fatal stabbing. On appeal, the Administrative Law Judge with the Occupational Safety and Health Review Commission agreed with and affirmed OSHA's findings.

Prior to the Integra decision, OSHA's Manhattan-area office conducted an investigation at Brookdale University Hospital and Medical Center, a 530-bed hospital in Brooklyn, New York, in response to a complaint of workplace violence. OSHA determined that the hospital failed to adequately protect its employees from workplace violence, including physical injuries, intimidation and threats by patients and visitors. According to OSHA, there were approximately 40 incidents at the hospital in just over a two-month period of time from February to April 2014. The most serious incident involved a 70-year-old nurse who suffered severe brain injuries as the result of a violent attack by a patient who knocked her to the floor and repeatedly kicked her in the head while she lay unconscious. OSHA found that the hospital's management was aware of the workplace violence problem and its prevention program was ineffective to stop the assaults against its employees. As a result, OSHA cited Brookdale for one willful violation, with a proposed fine of $70,000, for failing to develop and implement adequate measures to reduce or eliminate the likelihood of physical violence and assaults against employees by patients or visitors.

While OSHA’s guidance and administrative decisions seem to make clear that the hazard of workplace violence may result in an OSHA citation and hefty penalties, enforcement without identifiable standards has left some healthcare attorneys and employers guessing at exactly how much employers are required to do to prevent violent acts in the workplace.

To this end, the Joint Commission, which accredits and certifies nearly 21,000 healthcare organizations and programs in the United States, has several standards that relate directly or indirectly to workplace violence prevention.21  For instance, the Joint Commission’s Environment of Care chapter in the Comprehensive Accreditation Manual for Hospitals (CAMH) requires organizations to have processes for managing, evaluating, monitoring, analyzing and improving the safety and security of its environment.22  The Joint Commission does not, however, currently have standards specific to workplace violence.

On March 8, 2018, several House Democrats introduced the Health Care Workplace Prevention Act (H.R. 5223), intended to curb workplace violence in healthcare facilities. The bill would have directed OSHA to create a standard that would require healthcare facilities to develop and implement facility- and unit-specific workplace violence prevention plans. The legislation follows a regulation enacted in 2014 in California, which went into effect in 2017, directing the California Occupational Safety and Health Administration to create a workplace violence prevention standard. The legislation stressed prevention, training and worker participation. The bill was not enacted.23

In the meantime, some states, such as California and Illinois, have attempted to address the problem of healthcare industry workplace violence through legislation.24 These states have mandated comprehensive prevention programs for healthcare employers, as well as increased penalties for persons convicted of assaulting healthcare workers.25

While state and federal laws on healthcare workplace violence continue to evolve, there are other safeguards in place and being implemented. For instance, in 2016 the American Medical Association adopted Policy D-515.983, “Preventing Violent Acts Against Health Care Providers,” to help prevent violent acts in the healthcare setting.26 In addition, the American Nursing Association has developed a new position statement setting forth its strategies to prevent workplace violence in the healthcare setting.27 Moreover, workplace violence in the form of bullying and/or harassment has been viewed by the Equal Employment Opportunity Commission (EEOC) as a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 and the Americans with Disabilities Act of 1990.28 In fact, several healthcare providers have been the subject of EEOC lawsuits, including a Virginia health system that paid an employee $30,000 to settle a harassment suit because the employer failed to protect the employee against a patient.29

Looking Forward

With this in mind, healthcare industry attorneys need to advise their healthcare clients to take reasonable steps to identify risks of workplace violence and implement appropriately tailored measures to prevent and mitigate such violence. Attorneys for healthcare employers can and should take an active role in developing and implementing comprehensive workplace policies and procedures that address the possibility that violence will affect the workplace. Good workplace violence prevention programs address security, education, deterrence, intervention, emergency response and recovery. Many such programs begin with a thorough workplace analysis. This helps identify risks and ways to mitigate them. Mitigation measures often include engineering controls, administrative controls (policies and procedures) and training. Risk mitigation measures should be tailored to the employer’s particular circumstances. For example, a hospital in a high crime area likely needs a more robust plan than a private doctor’s office in a “safer” area. Security fences, metal detectors and armed guards may be impractical and unnecessary for some healthcare employers, but maybe not for others.

Administrative controls often include a policy of “zero tolerance” toward workplace violence. That may seem obvious for attorneys, but employers must understand such policies must be rational and meaningful and should not be the only element of the administrative controls. Similarly, merely declaring a workplace a “gun-free zone” is not sufficient. In the first place, shootings are just one type of workplace violence – and a rare type at that. Moreover, it is painfully obvious that such declarations are ineffective. Shootings often occur in gun-free zones specifically because attackers know these are “safe spaces” where no one is likely to shoot back.30 Someone who is willing to accept the consequences of committing murder is unlikely to be daunted by the consequences of violating an employment policy. To be effective, administrative controls must consider and meaningfully address a wide range of potential workplace violence. To that end, healthcare attorneys and employers must balance state laws that secure the rights of persons to carry weapons with workplace violence and prevention protocols. To the extent feasible, administrative controls should apply to all employees, patients, clients, visitors, contractors and others who may enter an employer’s premises.

Policies should encourage employees to report all incidents and risks of workplace violence and provide assurance that reports will be investigated and retaliation will be prohibited. Employers should consider requiring employees to notify the employer if the employee seeks or obtains (or becomes the subject of) a protective order. For example, an employer would benefit from knowing about a marital conflict with the potential of escalating and the possibility of a spouse coming to the worksite with intentions of harming his or her spouse. Preventive measures in such circumstances may include distributing photographs of restrained persons (and persons who have previously engaged in violent acts) to security personnel, receptionists and others who are likely to encounter the person. Those personnel can be trained to isolate such individuals, notify designated managers, call the police and take other appropriate actions. Administrative controls also may include providing security personnel to escort employees, visitors and others to their vehicles. Action and critical thinking are essential.

Training is a crucial part of an effective workplace violence prevention program. Training helps employees (and employers) understand and appreciate potential risks and the importance of knowing and complying with administrative controls. Employees can be taught to recognize signs of potential violence, such as threats, overreaction to minor slights, bullying and domestic relations issues. Managers can be trained to assess employees’ complaints for signs of anger, aggression and depression and to intervene when appropriate. Proper training can mitigate the impact of an incident of extreme workplace violence, such as a shooting, and can reduce the risk of workplace violence occurring in the first place.

Other practical interventions that can reduce violence in many healthcare workplace settings include, for example, affixing furniture and lighting so they cannot be used as weapons, maintaining clear lines of sight between workers while they are caring for patients, and providing easy access to panic buttons or phones to call for help. It is imperative that nurses, doctors and other healthcare workers, along with security staff and custodial personnel, are all  involved in the development and implementation of workplace violence prevention programs.

Conclusion

This article just scratches the surface of workplace violence issues in the healthcare industry. If there is anything employers in the healthcare industry and their counsel should know, it is that these issues are serious and that prompt, serious action is necessary to protect employees and others in the workplace. A healthcare employer’s failure to prepare for and to respond quickly and appropriately to workplace violence can lead to lost workdays, medical expenses, negative publicity and decreased productivity.  Even if employers may never encounter aggressive or violent people at their workplace, they should still be advised to think seriously about the risk that something could happen.

Remember, a dose of prevention is the best medicine for combating and decreasing violence in the healthcare workplace.

  1. See OSHA Workplace Violence Fact Sheet, https://www.osha.gov/OshDoc/data_General_Facts/factsheet-workplace-violence.pdf.
  2.  See OSHA’s Workplace Safety in Hospitals website, located at https://www.osha.gov/dsg/hospitals/workplace_violence.html.
  3.  Id.
  4.  See OSHA’s Workplace Violence in Healthcare publication, located at https://www.osha.gov/Publications/OSHA3826.pdf; see also https://www.osha.gov/dsg/hospitals/workplace_violence.html.
  5.  See U.S. Bureau of Labor Statistics Census of Fatal Occupational Injuries – Current and Revised Data, located at https://www.bls.gov/iif/oshcfoi1.htm
  6.  See U.S. Government Accountability Office report, “Workplace Safety and Health: Additional Efforts Needed to Help Protect Health Care Workers from Workplace Violence (March 2016). https://www.gao.gov/assets/680/675858.pdf.
  7.  See National Institute for Occupational Safety and Health Publication No. 96-100 (July 1996), https://www.cdc.gov/niosh/docs/96-100/introduction.html.
  8.  See. e.g., https://www.sciencedaily.com/releases/2015/02/150226141442.htm.
  9.  See OSHA’s Workplace Violence in Healthcare publication, located at https://www.osha.gov/Publications/OSHA3826.pdf.
  10.  Enough is enough: OSHA to issue regulation on violence, Case Management Advisor, 2017;28(9):43-5, https://www.reliasmedia.com/articles/140324-enough-is-enough-osha-to-issue-regulation-on-violence (last visited on January 28, 2019). 
  11.  Weil, M. Vitaly Davydov of Montgomery, who killed psychiatrist, held in another slaying, The Washington Post. October 21, 2011, www.washingtonpost.com/local/vitaly-davydov-of-montgomery-who-killed-psychiatrist-held-in-another-slaying/2011/10/21/gIQAF7064L_st ory.html (last visited on January 28, 2019).
  12.  Moran, M., Patient kills Virginia psychiatrist in his home office, Psychiatric News. August 19, 2011, http://psychiatryonline.org/newsarticle.aspx?articleid=115927 (last visited on January 28, 2019).
  13.  Fenton, J., Police: man upset over mother’s care at Hopkins kills her, himself. The Baltimore Sun, September 17, 2010, http://www.baltimoresun.com/bal-swat-hopkins-photo-0916-photo.html (last visited on January 28, 2019).
  14.  See OSHA’s Workplace Violence in Healthcare publication, located at https://www.osha.gov/Publications/OSHA3826.pdf (discussing the unique challenges in healthcare).
  15.  Id.
  16.  Reph, M,. Strategies to Prevent Healthcare Workplace Violence, September 13, 2018, https://www.psfinc.com/articles/healthcare-workplace-violence/  (last visited on January 28, 2019).
  17.  Meissner, JE., Nursing: are we eating our young? Mar. 1996;16(3):51-3.
  18.  See Taking a Stand Against Bullying, HealthTrust, https://healthtrustpg.com/professional-development/taking-stand-bullying/  (last visited on January 28, 2019).
  19.  See OSHA’s Workplace Violence website, located at https://www.osha.gov/SLTC/workplaceviolence.
  20.  Id. at footnote 18.
  21.  See Sentinel Event Alert #59 Supplemental Information - Joint Commission Requirements Relevant to Physical and Verbal Violence Against health Care Workers, July 9, 2018, located at https://www.jointcommission.org/questions_answers_hospital_accreditation_standards_workplace_violence/  (last visited on January 29, 2019).
  22.  Id.
  23.  Health Care Workplace Violence Prevention Act, H.R. 5223, 115th Cong. (2018).
  24.  While CalOSHA is the only state plan addressing the issue of workplace violence through legislation, other OSHA state plan states, such as Connecticut, Hawaii, Iowa, Maine, New Jersey, Oregon and Vermont have adopted federal instruction CPL 02-01-158, Enforcement Procedures and Scheduling for Occupational Exposure to Workplace Violence Directive (Jan. 2017).
  25.  California Labor Code 6400 requires that "every employer shall furnish employment and a place of employment that is safe and healthful for the employees therein." A written, effective Injury and Illness Prevention (IIP) Program is required for every California employer under the CAL/OSHA Title 8 Regulations, Chapter 7, Section 3203. The Illinois General Assembly passed, and the Governor signed into law, the Healthcare Workplace Violence Prevention Act (P.A. 100-1051) on August 24, 2018. The Illinois Act has been incorporated by reference into the Hospital Licensing Act (210 Ill. Comp. Stat. 85/et seq.), as well as numerous other Illinois statutes.
  26.  See American Medical Association Reports of the Council on Science and Public Health (2016), located at https://www.ama-assn.org/sites/ama-assn.org/files/corp/media-browser/public/about-ama/councils/Council%20Reports/council-on-science-public-health/a16-csaph-reports.pdf.
  27.  See the American Nursing Association’s Position Statement on Incivility, Bullying and Workplace Violence, located at https://www.nursingworld.org/practice-policy/nursing-excellence/official-position-statements/id/incivility-bullying-and-workplace-violence/.
  28.  Fink-Samnick, E., The New Age of Bullying and Violence in Health Care: Part 4, Professional Case Management, Vol. 23, No. 6, 294-306, located at https://nursing.ceconnection.com/ovidfiles/01269241-201811000-00002.pdf;jsessionid=6022FE810C9419EB0C2DC49D163504CC.
  29.  See EEOC Press Release, “Southwest Virginia Community Health System to Pay $30,000 to Settle EEOC Sexual Harassment Suit,” located at https://www.eeoc.gov/eeoc/newsroom/release/10-23-13b.cfm (last visited on January 28, 2019).
  30.  Keep in mind, however, that some states specifically allow guns to be carried, so a healthcare entity may not have this option.

Chantell C. Foley

Fisher Phillips, Louisville, Kentucky

Chantell Foley is an attorney in the Louisville, Kentucky, office of Fisher Phillips. Her practice is exclusively devoted to representing employers in matters of labor and employment law. She may be reached at cfoley@fisherphillips.com or (502) 561-3969. This article merely provides an overview of certain legal issues and cannot be construed as legal advice.